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THE QUEENSLAND
CRIMINAL REPORTS
BEING A / \^
REPRINT '
OF
ALL CRIMINAL CASES
REPORTED IN
THE SUPREME COURT REPORTS, Vols. 1 to 5 (1860 to 1881),
THE QUEENSLAND LAW JOURNAL and NOTES OF CASES,
Vols. I. to XI. (1881 to 1901),
THE QUEENSLAND STATE REPORTS and WEEKLY NOTES
(1902 to 1907).
WITH ANNOTATIONS
SHOWING WHAT CASES HAVE BEEN OVERRULED, FOLLOWED, !Eto.,
AND WITH REFERENCES TO THE SECTIONS OF THE
CRIMINAL CODE NOW APPLICABLE.
THOMAS MACLEOD, ESQ.
(Barrister- at-Law),
Editor of " The Queensland Justice of the Peace. " and
" Blair on Worker's Gompensation."
BRISBANE :
LAW BOOK COMPANY LIMITED.
1913.
P RE FACE. \\ '^^^ /
^-4wTre;t,i>
This volume of reprinted reports of Criminal Cases
has been compiled in order to have in a handy form, both
for Court work and for reference purposes, the cases decided
on this branch of the law in Queensland prior to the publica-
tion of The Queensland Justice of the Peace, to which it is
a companion volume. Difficulty has been experienced,
especially by new practitioners, in obtaining complete sets
of the reports (particularly the earlier volumes), from which
these cases have been reprinted, and in addition to such
difficulty, the price of the reports is a serious consideration.
Numerous requests have been made during recent years for
such a volume, and it is hoped it will prove of service, not
only to members of the Profession, but also to Magistrates,
Clerks of Petty Sessions, and members of the Police Force,
A Subject Index is included in order to facilitate quick
reference to cases. The Editor desires to express his
thanks to Mr. T. B. Hunter, Solicitor, who has personally
attended to the reading of the proofs and the checking of
references.
T. M.
Lutwyche Chambers,
March, 1913.
INDEX OF CASES.
A
PAQB
Abbott, R. v. . .
. . 354
Ah Sam, R. v. . .
186
Aird V. Skelton
476
Alberg, R. v.
337
Archibald, R. v.
44
Arrowsmith, R. v.
. . 491
Attwood, R. V.
26
s
Baird and Others, Williams v.
. . 166
Ball V. Humphreys, JSx parte Humphreys
. . 467
Barton, R. u. . .
. . 141
Beckman, R. v.
. . 381
Bennett, R. «. . .
23, 377
Berneoker v. White
. . 209
Bilbey v. Hartley and Others
219
Black V. Turner . .
283
Britcher v. Williams and Others
249
Bunney, K. v. . .
. . 265
Bunting and Walsh, R. v.
400
C
Camm, R. v.
. . 138
Carlo, Pedro, In re
. . 241
CarroU v. Hasz, Ex parte Hasz
467, 470
Caruchet, In re
359
Castles and Griffiths, R. v.
54
Cawley, R. v. . .
. . 314
Chabal, Ex parte, R. v. Lewis
. . 409
Chambers and Another, R.
V.
327
INDEX OF CASES.
PAGE
Clarke, Emmerson v.
71
Coath, R. v.
63
Collins, R. v. . .
24
Connell, B,. v. . .
. 286
Connolly v. Meagher, Ex parte Meagher
. 573
Cooney, Crudgington v. . .
414
Corbett, R. v. . .
. 463
Corvie and Lesnini, TA. v.
122
Court, In re
60
Craine, R. «. . .
. 350
Crown (Tim), B.. v.
. 303
Crudgington v. Cooney, Ex parte Cooney
414
Cunningham v. McFarlane and Another
129
Curran v. Dowzer and Others
160
Davies and MoMurdo, R. v.
150
Dixon, R. V. . .
. 174
Dodwell, n. V. ..
. 105
Dowling V. Fritz and Others
. 134
Dowzer and Others, Curran v.
160
Draper, R. v. . .
. 492
Duncan, R. v. . .
. 239
Dunshot, R. w. . .
. 365
e:
Edwards, McNamara v.
Edwards, R. v. . .
Emmerson v. Clarke
Ex parte Edwards
585
310
71
Ferrett, Ex parte, R. v. Wilson
11
Finlay, B,. v. . .
. 328
Fitzgerald, R. v.
494
Forrest, R. -y. . .
600
Franz, R. v.
238
Freeman, B,. v. . .
. 300
Fritz and Others, Dowling v.
. 134
Fuzil Deen, B. v.
307
INDEX OF CASES.
PAGE
Gallagher, Sheehan v. . . . . . . . . . . 426
Gash, B,. V.
131
Geise v. Hennessey, Ex parte Hennessey-
. 497
Glen, R. V.
. 361
Goldsmith v. Roche
52
Goldsworfchy, R. v.
. 334
Gomez, R. v. . .
. 119
Griffin (No. 1), R. w.
29
Griffin (No. 2), R. t;.
35
Griffiths and Castles, B,. v.
54
Griffiths and Others, R. v.
. 502
Grimes, R. v. . .
. 336
H
Hallam, Molloy v.
. . 478
Haly and Another, Rawlings v. . .
. . 234
Hamill, R. v. . .
. . 495
Hamilton, R. v.
195, 362
Hart, R. «.
357, 370
Hartley and Others, Bilbey v.
219
Hasz, Carroll v.
467, 470
Haughton, In re
. 110
Henderson v. Macdonald and Another
. 216
Hennessey, Geise v.
497
Hennessey, R. v.
27
Highfield, R. v. . .
. 117
Hill, n. V.
. 370
Hinckley, R. v. . .
189
Hobart and Murphy, R. «.
. 342
Hogan, K. V. . .
. 207
Hogan (Rody), B,. v.
207
Hook (Lum), R. v.
212
Hopkins and Eaton, R. v.
. 162
Horrocks, B,. v. . .
. 237
Hoskings, B,. v. . .
83
Houston, B. V. . .
. 269
Howells, Ex parte, R. v. Edwards . .
. 310
HuU, B.v.
. 396
Hull (No. 2), R. V.
. 403
Hume, B. V.
. 395
"VIU.
INDEX OF CASES.
PAGE
Humphreys, Ball v.
.. 467
Hustin (Louis), R. v.
. . 124
<T
Jack, R. w.
256
Jacobs, R. ■«. . .
. . 538
James, R. v. . .
. . 329
Jenkins, McNamara v., Ex parte Jenkins
581
Jimmy, R. v. . .
93
Jooumsen, R. ■y.
396
Johnson, B,. v. . .
.. 215
Johnstone; R. v.
591
Jong Song V. Joy Hoy and Others . .
348
Joy Hoy and Others, Jong Song v.
348
Judge, R. I).
168
Justices of Dalby, Ex parte, O'Keefe, R. v. . .
. . 420
If
Kearley, R. v. . .
. . 601
KeUy, n. V.
78
Kennedy and Royston, R. v.
123
Kenniff, B,. v. . .
422, 432, 434
KennifE (No. 2), R. v.
. . 432
Kiefer, Millis v.
. . 376
King, R. v.
95
King, R. v., Ex parte King
1
Knack, R. v. . .
. . 203
Koghie, B. V. . .
189
Kovalky, R. •y. . .
295
Kuruwaru, R. v.
372
Xa
Lang and Murphy, R. v. . .
352
Lannon, R. v. . .
. . 486
Leane, R. «.
. . 492
Lesnini and Corvie, R. v. . .
122
Levy, B. V.
56
Lewis, R. i;.
25
Lewis, Ex parte Chabal, R. v.
. . 409
Long V. Rawlins
87
Long, In re
91
INDEX OF CASES.
IX
Longland, R. v. . .
Louis Hustin (called Watier), R. v.
Lum Hook, R. «.
Lynch, R. v.
PAOB
325
124
212
537
BS
Macdonald, R. v.
Macdonald and Another, Henderson v.
Maguire and Schloss, R. v.
Malone, R. v.
Mangin, R. v.
Many Many and Others, R. v.
Meagher, Connolly v., Ex parte Meagher
MiUis V. Kiefer . .
MiUs, Swanwick v.
Minnis, In re
Molloy V. HaUam
Moody, U. V.
Moran, R. v.
Murphy and Hobart, R. v.
Murphy and Lang, R. v.
Murphy and Others, R. v.
Murray, R. v.
McDermott, R. v.
McFarlane and Another, Cunningham v.
McGee, U. v.
McMurdo and Da vies, R. v.
McNamara v. Edwards, Ex parte Edwards
McNamara v. Jenkins, Ex parte Jenkins
MT
Nugent, R. v.
386, 505
216
337
461
261
296
573
376
191
134
478
344
335
342
352
549
370
433
129
279
150
585
581
24
O'Byme, Ex parte, Smith v. O'Byrne
0' Byrne, Smith v.
O'Keefe, Ex parte, R. v. Dalby Justices
Oliver, Ex parte, R. v. Murray
252
252
420
370
Parker, R. v.
Patterson, R. v.
140
580
INDEX OF CASES.
Pearce, R. v.
, ,
, ,
. 532
Pearson, R. v. . .
39
Peim, R. V.
62
Pieremont, R. r.
. 175
Pierson, The King v., Ex parte Small
. 549
Portley, R. v. . .
81
Priday, R. v. . .
. 384
Priday, Ex parte, R. v. Priday
. 384
Pugh, R. V.
13
IC
Rawlins, Long v.
87
Rawlings v. Haly and Another
. 234
Richert, R. «. . .
. 335
Robinson, B.. v. . .
. 285
Roche, R. v..
. 204
Roche, Goldsmith v.
52
Rody Hogan, R. v.
. 207
Ross, R. v.
. 298
Royle, R. v.
. 272
Roys, R. i;.
351
Royston and Kennedy, R
V.
123
Ryan, B,. v.
"
. 553
B
Sam (Ah), R. v. < .
186
Schloss and Maguire, R. v.
337
SeUheim and Others, Viokers v. . .
. 136
Shaw, R. D.
. 337
Sheehan v. Gallagher, Ex parte Sheehan
. 426
Sidney, Ex parte, R. v. White
8
Skelton, Aird v.
. 476
Small, Ex parte. The King v. Pierson
. 549
Smith V. O'Byrne i.
. 252
Spence, R. v. . .
. 335
Street, R. ■;;. . . . . . . ~
. 196
Strutt, Ex parte, R. v. Macdonald . .
. 386
Swanwick v. Mills
. 191
T
The King v. Pierson, Ex parte Small . . . . . . 549
Tidbury, B,. v. ..
.
,
. 349
INDEX OF CASES.
XI
Tim Crown, R. v.
Tracey, R. v.
Turner, Black v.
FAOB
303
299
283
Vickers v. Sellheim and Others
Vos, R. «.
Vos and Others, R. u.
136
334
288
vsr
Walsh and Bunting, R. v.
Warden, R. v. . .
Warton, B,. v. . .
WeUs, R. V.
White, Bemecker v.
White, R. v.. Ex parte Sidney
Whitehouse, R. v.
WilMe, B,. V.
Williams v. Baird and Others
Williams and Others, Britcher v.
WiUie, B.. V.
Wilson, R. «.
Wilson, R. v., Ex parte Ferrett
Wisher and Another, R. v.
308, 366,
400
353
540
112
209
8
392, 396
41
166
249
336
336
11
323
Queensland Justice of tlje Peace.
CRIMINAL REPORTS.
1860-1907.
R. V. KING, Ex parte KING.
[1 S.C.R. 1.— Note— See ss. 12, 13, 14. 557 (8) of Criminal Code, 41 and 55 Vic,
c. 69 ; Extradition Act, 1903 (No. 12 of 1903].
Habeas corpus — Remand of prisoner where the Court has no jurisdic-
tion to try o'ffence — Corpus delicti — Arrest of prisoner on
suspicion of a felony committed beyond the territorial limits of
the colony — Comity of nations — Delivery up of fugitives from
justice — Extradition — 2 Vic, No. 11 — 6 and 7 Vic, c. 34,
ss. 2, 3, 4, 5, 6, 9—16 and 17 Vic, c 118.
A constable has no power to arrest a person on suspicion of having committed
a felony beyond the territorial limits of the colony, unless such felony be supposed
to have been committed upon the high seas and within the limits of the
Admiralty jurisdiction of the Supreme Court of Queensland.
If an arrest appears to have been improperly effected, the Court cannot
remand a prisoner, unless there be some ofience committed by him within the
jurisdiction of the Court.
Independent of special compact, no state is bound to deliver up fugitives
from justice upon the demand of a foreign state, and there is no rule of the law
of nations which requires the Supreme Court of Queensland to assist the police
of a foreign dominion in bringing offenders to justice.
Application by William King for his discharge on the return
to a writ of habeas corpus.
I860.
23nd February,
25th March.
Lutwyche.
a QUEENSLAND JUSTICE OF THE PEACE.
ExparuKi^a. Blalceney appeared for the prisoner.
Pring A.O. to oppose the application.
The facts and arguments appear sufficiently in the judgment.
C.A.V.
25th March, 1860.
ulwyc e J. LtTTWYCHE J. : A rule nisi having been obtained in Chambers
for a habeas corpus directing the keeper of the gaol at Brisbane to
bring up the body of WiUiam King, in order that he might be
discharged from custody, on the first day of the present Term, he
was accordingly brought into Court, and the return made by the
gaoler was that King had been committed to his custody by ^drtue
of a warrant of remand signed by two Justices of the Peace in
and for the Colony of Queensland, and setting forth that King
had been charged before them with felony, and that it had
appeared to them to be necessary to remand him ; and that the
said warrant commanded the gaoler to receive King into his
custody, and there keep him until the 25th day of February,
when he was thereby commanded to have King at the Police
Office, Brisbane, at 10 o'clock in the forenoon, before the said
justices, or before such other justices or justice of the peace
for the said Colony ^s might then be there, to answer further
the said charge. The depositions taken before the justices
were also returned, and from them it appeared that King was
taken into custody by the Chief Constable of the Brisbane Police,
on the 17th February, 1860, on suspicion of having caused the
death of one Nicholas Deer, at Maryland, in the Colony of New
South Wales, by inflicting a wound on his body with shears,
or some such instrument, on or about the 25th November, 1859,
It appeared also that he had been committed by the Warwick
Bench of Magistrates to take his trial for the offence at Brisbane,
and that at the Brisbane February Assize he had been discharged
by the order of the Judge, upon the statement of the Attorney-
General that he had no charge to make against the prisoner,
on account of want of jurisdiction.
Mr. Blakeney was heard on King's behalf, and the Attorney-
General argued the case on the part of the Crown, citing the
dictum of Heath J. in Mure v. Kay (4 Taunt. 43) ; Burn's Justice,
Tit., Habeas Corpus ; Ex parte Krans (1 B. & C. 258, 2 D. & E.
CRIMINAL REPORTS, 1860-1907. >
411), Rex V. Marks (3 East. 157), Ex 'parte Scott (9 B. & C. 446, ^K- "■ ^Ma,
^ ^ £xpartfi Kino.
4 M. & R. 361). On account of the great importance of the
question, the Court took time to consider and prepare a written " ^^"^
judgment, which I shall now deliver.
I am of opinion, in the first place, that no constable has power to
arrest any person on suspicion of his having committed a felony
beyond the territorial limits of the colony, unless such felony be
supposed to have been committed upon the high seas, and within
the limits of the Admiralty jurisdiction of the Supreme Court.
The cases which establish, in general terms, that a constable may
without warrant arrest a person upon a reasonable suspicion
of felony (See Davis v. Russell, 5 Bing. 354, 2 M. & P. 590 ;
Beckwith v. Philby, 6 B. & C. 635, 9 D. & R. 487) will not be
found to support, if carefully examined, the universal application
of the rule. The " great original and inherent authority with
regard to arrests " (4 Steph. Comm. 359), which a constable
undoubtedly possesses, is limited by the boundaries of the state
or dominion in which he holds his office. If the law were other-
wise, the power of arrest on suspicion might become, in this
part of the globe, an engine of the most grievous oppression. It
is clear that if such a power exists, in reference to felonies com-
mitted out of the colony, it might be exercised wherever a felony
has been committed, or is supposed to have been committed,
in any part of the British Empire, to say nothing of the dominions
of foreign powers. Is a man, then, to be arrested and committed
to gaol in this colony because the constable has received informa-
tion which leads him to suspect that his prisoner was concerned
in some felony at Delhi or British Columbia ? And, if com-
mitted to gaol, how long is he to be kept there ? This Court
would not have any jurisdiction to try him for the offence. Is he to
abide in gaol untU the authorities of some distant portion of the
Empire have been communicated with, and have signified their
intention to remove him at the first convenient opportunity ?
Common sense, which is very often found in the closest alliance
with the law of England, revolts at the suggestion of imprisoning
a man for twelve or eighteen months before trial ; yet, if the
imprisonment be designed to insure his being brought to trial, as
long, or even a longer interval would occasionally elapse.
It was contended, however, on the part of the Crown, that,
4 QUEENSLAND JUSTICE OF THE PEACE.
E. « Kino, assuming the caption to have been improperly efeected, yet if a,
Mx parte Kino. ^ ^ \ n t- ■^^ ^
corpus delicti appear on the depositions, the Court wui remana
Lutwyche J. ^^^ prisoner. But what is meant by a corpus delicti 1 My
opinion is clear that it can only apply to some offence committed
within the jurisdiction of the Court. From the depositions it
appears that the felony with which King stood charged before
the justices was committed in Maryland, then and now within
the colony of New South Wales, on the 25th November last. Upon
the proclamation of the Queen's letters patent on the lOtn
December following, the district of Moreton Bay was separated
from New South Wales, and became a distinct dominion under
the name of Queensland. An appeal no longer lies from its
Supreme Court to the Supreme Court at Sydney, and the con-
current jurisdiction within twenty-five miles of each side of the
border line with which the Judges of each Court were invested,
has, by force of the Act of Separation, been abolished. The offence
charged is shown, therefore, to have been committed within a
foreign dominion, and as, according to the common law of Eng-
land, " criminal offences are considered as altogether local, and are
justiciable only by the Courts of that country where the offence is
committed " (See "Wheaton's Elements of International Law," 6th
Ed., 1857, p. 175), King can only be tried by the Court of New
South Wales ; and no such corpus delicti appears on the face of
the depositions as would justify this Court in remanding the
prisoner to custody.
The Court was pressed by the Attorney-General to remand the
prisoner on another ground, viz. : — The obligation imposed by
the law of nations to assist in bringing a criminal to justice,
' and he relied on a dictum of Mr. Justice Heath, who, in the case
of Mure v. Kay (supra), is reported to have said : — " It has-
been generally understood that wheresoever a crime has been
committed, the criminal is punishable according to the lex loci
of the country against the law of which the crime was committed ;
and by the comity of nations, the country in which the criminal
has been found, has aided the police of the country against
which the crime was committed in bringing the criminal to punish-
ment. In Lord Loughborough's time, the crew of a Dutch
ship mastered the vessel and ran away with her, and brought
her into Deal ; and it was a question whether we could seize
CRIMINAL REPORTS, 1860-1907. £
them, and send them to Holland ; and it was held we might. „K- "■ -ij",
Ex parte King.
And the same has always been the law of all civilized countries." —
The reputation of Taunton, as a reporter, does not stand very ^
high, and it is, therefore, possible that he may have misunder-
stood what fell from the learned Judge, and have stated too
broadly the general proposition. Of the grounds of the decision
in the particular case referred to, we are not informed ; but it
may be observed that there may be Acts within the competency
of a sovereign state which could not be constitutionally under-
taken by a dependent dominion like a colony. At all events,
whatever may be the value of the precedent in a case of piracy,
it does not establish the position that, " by the comity of nations,
the country in which the criminal has been found, has aided the
police of the country against which the crime was committed
in bringing the criminal to punishment." On the contrary,
both a priori reasoning and the evidence of indisputable facts
point to the conclusion that such an obligation has not yet been
imposed by that code which we call the law of nations. A much
higher authority than Mr. Justice Heath — I refer to that dis-
tinguished publicist, Mr. Wheaton — states the question thus : He
says (pp. 176-7), " The public jurists are divided upon the question
how far a sovereign state is obliged to deliver up persons, whether
its own subjects or foreigners, charged with or convicted of crimes
committed in another country, upon the demand of a foreign state,
or of its officers of justice. Some of these writers maintain the
doctrine that, according to the laws and usage of nations, every
sovereign state is obliged to refuse an asylum to individuals
accused of crimes affecting the general peace and security of
society, and whose extradition is demanded by the Government
of that country within whose jurisdiction the crime has been
committed. Such is the opinion of Grotius, Heineccius, Bur-
lamaqui, Vattell, Rutherforth, Schmelzing, and Kent. Accord-
ing to Puffendorf, Voet, Martens, Kliiber, Leyser, Kluitt,
Saalfield, Schmaltz, Mittenmeyer, and Heffter, on the other
hand, the extradition of fugitives from justice is a matter of
imperfect obligation only ; and though it may be habitually
practised by certain states, as the result of mutual comity and
convenience, it requires to be confirmed and regulated by special
compact, in order to give it the force of an international law ; and
QUEENSLAND JUSTICE OF THE PEACE.
B. V. King, the last mentioned learned writer considers the very fact of the
Ex parte Kisa. . , ,. a.- i.i.- it
existence of so many special treaties respecting this matter as
Lutwyohe J. conclusive evidence that there is no such general usage among
nations, constituting a perfect obligation, and having the force of
law properly so called. Even under systems of confederated
states, such as the Germanic Confederation, and the North
American Union, this obligation is limited to the cases and con-
ditions mentioned in the federal compacts. The negative doctrine^
that, independent of special compact, no state is bound to deliver
up fugitives from justice upon the demand of a foreign state,
was maintained at an early period by the United States Govern-
ment, and is confirmed by a considerable preponderance of
judicial authority in the American Courts of Justice, both state
and federal."
The " negative doctrine " thus maintained in the United States
has been tacitly recognised of late years by England, France, and
Prussia, who have entered into treaties with the United States for
the extradition of criminals charged with certain specified offences.
A treaty has also been made between England and France for the
same object, and the Acts of the Imperial Parliament, 6 and 7
Vic, c. 75 and c. 76, were passed to carry into effect the con-
ventions with France and the United States for that purpose.
By entering into treaties on the subject, each of these powers
has, I conceive, admitted that a special compact was necessary
to obtain the object desired ; by limiting the scope of the treaty
to a certain class of offenders, each country practically asserted
its right to afford an asylum to all other fugitives from justice.
Political offences affect as much as any other, sometimes much
more, the general peace and security of society ; yet, it is well
known that England has never felt herself obliged, by the comity
of nations, to assist the police of the country against which the
political crime was committed in bringing the criminal to punish-
ment, even though the crime amounted to high treason.
Enough, then, has been said to show that a constable cannot
arrest any person on suspicion of a felony committed beyond the
limits of the dominions to which he himself belongs ; that the
Court cannot remand the prisoner when it has no jurisdiction
to try him for the felony alleged to have been committed ; and
that there is no rule of the law of nations which requires the
CRIMINAL REPORTS, 1860-1907. '
Court to assist the police of a foreign dominion in bringing _^- ^- ;^"'''
„ J . Ex parte King.
OEfenders to justice. There are, however, two enactments, one
a Colonial Act of Council, the other an Imperial Statute, which '^^^
must be noticed, inasmuch as the former (2 Vic, No. 11, Call. 501)
bears out the view taken by the Court, and shows specific legis-
lation on the subject to have been considered necessary ; while
the latter (6 and 7 Vic, c. 34, amended by 16 and 17 Vic, o.
118) points out the course which ought to have been adopted
in the present case, and which must be pursued in future.*
The object of the Colonial Act, 2 Vic, No. 11, is well indicated
by its title, " an Act to facilitate the apprehension of offenders
escaping from the Island of Van Dieman's Land, or from South
Australia, to the colony of New South Wales." It is unnecessary
to recapitulate its provisions, as the Act itself has been virtually
repealed by the Imperial Act subsequently passed, 6 and 7 Vic,
c. 34. That Act, which was not mentioned during the argument,
now extends to all felonies (see 16 and 17 Vic, c 118), and the
sections material to the present matter are ss. 2, 3, 4, 5, 6, and
9. These sections are set out at length in Oke's Magisterial
Synopsis, 6th Ed., 1858, pp. 640-645, and it will be seen that,
while they effectually provide for the apprehension of offenders
flying from justice, they also furnish ample safe-guards for the
liberty of the subject. No person who has committed a felony,
not triable by this Court, can be arrested in the colony of Queens-
land, except a warrant against him has first been issued by some
person or persons having lawful authority to do so. This warrant
must be brought to the Judge of the Supreme Court, who is to
require proof on oath or affidavit that the seal or -signature in the
warrant is the seal or signature of the person whose seal or
signature the same purports to be. On such proof being given, the
Judge is to endorse his name on such warrant, which warrant, so
endorsed, is to be a sufficient authority to the person or persons
bringing such warrant, and also to all persons to whom such
warrant was originally directed, and also to all peace officers of
the place where the warrant shall be so endorsed, to execute the
same within the jurisdiction of the Judge, by apprehending the
person against whom such warrant was directed, and to convey
him before a magistrate, or other persons having authority to
* See now 44 and 45 Vic, c. 69 (P. & W. 3122).
R. V. EiKG,
Ex parte King.
Lutwyche J.
QUEENSLAND JUSTICE OF THE PEACE.
examine and commit offenders for trial in this colony. The
magistrate is then authorised, upon such evidence of criminality
as would justify his committal if the offence had been com-
mitted in Queensland, to commit the offender to prison until he
can be sent back to that part of her Majesty's dominions in which
he is charged with having committed such ofiEence ; and immedi-
ately upon his committal, information thereof, in writing, under
the hand of the committing magistrate, accompanied by a copy
of the warrant, is to be transmitted to the Governor of the colony.
The Governor may then, by warrant, under his hand and seal,
order the person so committed to be delivered into the custody
of some person or persons, to be named in his warrant, for the
purpose of being conveyed into that part of her Majesty's
dominions in which he is charged with having committed the
offence, there to be dealt with in due course of law ; and if the
person so committed to gaol be not conveyed out of the colony
accordingly, within two calendar months after his committal,
he. may, on application to the Judge, be discharged.
The result of the present application is that the Court holds
the prisoner to be entitled to his discharge.
1860.
23rd February.
1st March.
Lutwyche J,
R. V. WHITE, Ex parte SIDNEY.
[1 S.C.R. 9.— Note.— 13 Vic, No. 29 and 17 Vic, No 6, are repealed. See now s.
109 of Licensing Act of 1885 (49 Vic, No. 18). 22 Vic, No. 7, mentioned by
Lutwyche J., has been repealed, see now s. 3 of Criminal Law Amendment
Act, 1892 (56 Vic, No. 3)J.
Criminal proceedings — Justices' refusal to hear evidence— The
Licensed Publicans' Act of 1849 (13 Vic., No. 29), ss. 2, 69—
— -17 Vic, No. 6, s. 3 — Sale of liquor in quantity not being
less than two gallons.
Whenever a statute authorises the imprisonment of an offender against its
provisions, whether it be as the primary punishment for the offence, or as
punishment in the last resort, the proceedings against him must be regarded as a
criminal proceeding.
Application on behalf of John Sidney for a writ of prohibition
against J. C. White and C. Coxen, Justices, and James Shelton,
CEIMINAL REPOETS, 1860-1907. 9
prosecutor, to restrain further proceedings upon a conviction R- "• White,
1 , r. TT. -., ~ o J. ^^ parte Sidney.
under 13 Vic, No, 29, s. 2, of the said John Sidney.
Blakeney, for applicant, to move rule absolute.
Pring A.Q. to show cause.
The facts and arguments of counsel appear fully in the
judgment of the learned Judge.
C.A.V.
1st March, 1860.
LuTWYCHE J. : The applicant had been convicted under the Act Lutwyche J.
13 Vic, No. 29, s. 2, for selling two bottles of rum, he not then
having a publican's general license ; and a rule nisi for a prohibi-
tion was subsequently granted upon the following grounds :—
1st. That the justices improperly refused to hear the evidence
■of the wife of the applicant, which was tendered on his behalf.
2nd. That neither in the information, nor the conviction, was
it alleged that the quantity disposed of was less than two gallons.
Cause was shown against the rule on the second day of Term
(Thursday, February 23), and it was agreed on both sides that the
judgment of the Court, whenever delivered, should be taken
as of the Term.
The first point turns upon the meaning of the words in the
3rd section of the Act 22 Vic, No. 7, which provides that nothing
in the Act shall render any wife competent or compellable to give
evidence for or against her husband in any criminal proceedings.
It was contended by Mr. Blakeney, on the part of the applicant,
that the proceedings against him under the Act of CouncU above
mentioned was not a criminal proceeding, because the primary
punishment 'contemplated by the Act was a pecuniary penalty.
The cases, however, which he cited Attorney -General v. Badloff,
10 Ex. 84 ; 23 L.J., Ex. 240 ; 10 Jur. 555 ; Easton's Case, 12
Ad. & Ell. 645 ; A.G. v. Siddon, 1 C. & J. 220 ; Backham v.
Bluck, 9 Q.B. 691), fail to establish this position. In the
Attorney-General v. Badloff, the Court of Exchequer was divided
n opinion whether an information for penalties under the
Smuggling Acts, at the suit of the Attorney-General, was a
criminal proceeding punishable on summary conviction. No
inference is deducible, therefore, either way, from that case. In
Easton's case, the decision of the Court was, that a person sen-
10
QUEENSLAND JUSTICE OF THE PEACE.
K. I'. White,
Ex parte Sidney.
Lutwyehe J.
tenced by two Justices to imprisonment with hard labour, under
the Smuggling Act, is in execution in a criminal matter. That
case, consequently, does not assist the applicant. The observa-
tions of Mr. Baron Bayley, in the Attorney-General v. Siddon,
merely go to show that an information for penalties at the suit
of the Attorney-General is a civil and not a criminal proceeding ;
and Rackham v. Bliick only decides that a proceeding in the
Consistorial Court, to recover penalties against a clergyman for
non-residence, is a civU and not a criminal suit. In none of
these cases was the pecuniary penalty the primary punishment
of the offence ; it was the sole punishment. And I am of opinion
— an opinion borne out even by the authorities cited in support
of the application — that whenever a statute authorises the
mprisonment of an offender against its provisions, whether it be
the primary punishment of the offence, or punishment in the last
resort, the proceeding against him must be regarded as a criminal
proceeding. In Easton's case (12 Add. Ell. 648), Lord Denman
says : " This must be called a criminal matter ; the party is
sentenced to imprisonment with hard labour, which puts the
point beyond a doubt." And in the Attorney-General v. Radloff
(23 L.J. (Ex.) 248), Mr. Baron Piatt, whose judgment was cited
in support of the application, puts the distinction between civU
and criminal proceedings as turning upon the liability to im-
prisonment. The 69th section of the Act under which the applicant
was convicted, authorises, in the event of non-payment of the
penalty imposed, a distress upon the offender's goods, and, in
case of the distress being insufficient, imprisonment of his person
for a limited period. And the Act, 17 Vic, No. 6, s. 3, empowers
the Justices, in all cases of conviction under the Act, 13 Vic,
No. 29, s. 2, to add imprisonment, in the first instance, to the
pecuniary penalty. There can be no doubt, therefore, that this
was a criminal proceeding, and the Justices properly refused
to hear the evidence of the applicant's wife.
The second point is of less importance, and may be disposed of
shortly. The objection to the proceedings is that neither the
information nor the conviction, based upon the second section
of the Act, alleges a matter which is made the subject of excep-
tion in the third section, and declares that the quantity dis-
posed of was less than two gallons. It may be worthy of con-
CRIMINAL REPOETS, 1860-1907. 11
sideration whether such an allegation would be in any case R- ^- Whitb,
Ex parte Sidney
necessary, and whether it would be not incumbent on the party
accused to bring himself within the exception, and to show LutwyoheJ.
that he, being a person within a proclaimed place, sold a quantity
of spirits, not being less than two gallons. But I do not decide
that point now. My judgment is founded upon the fact that the
proceedings before the convicting magistrates were had by
summons, and that in such summons the general nature of the
complaint was succinctly stated, pursuant to the proviso in
the 69th section of the Act 13 Vic, No. 29. A formal informa-
tion in writing had been exhibited before the magistrate who
issued the summons, but it was not used afterwards ; and, conse-
quently, the defendant could not have been placed in a worse
position than if the complaint had originally been made orally.
Credit may be given to the Court for knowing enough of the
common affairs of life to take cognizance that two bottles of
rum fall short of the quantity of two gallons. The summons
gave the magistrates jurisdiction, and in so plain a case every
intendment ought to be made in favour of its exercise.
The rule for a prohibition is accordingly discharged.
R. V. WILSON, Ex parte FERRET.
[1 S.C.R. 12.— Note See. 8 of 17 Vie., No, 3, Is repealed, see now s. 445 ol
Criminal Code.]
Prohibition — Illegally branding — 17 Vic, No. 3, ss. 3, 10 — Costs i860.
against justices. 30th April.
A conviction under s. 6 of 17 Vic, No. 3, of the " illegal possession and branding Lutwyche J.
of a filly " is bad.
Where magistrates retain counsel to support a conviction after the Attorney-
General has advised that the conviction cannot be sustained, and a writ of
prohibition is granted, they are liable for costs.
Motion on behaK of John Ferret to make absolute a rule nisi for
a writ of prohibition against John Kerr Wilson, Henry William
Coxen, and William Giles Gordon, Justices, and William Miles, to
restrain further proceedings on an order by the said justices
against the said applicant, and to recover from the said justices
the costs of the appUcation.
]2
QUEENSLAND JUSTICE OF THE PEACE.
R. o. Wilson,
Ex parte Fbbbbt.
Latwyohe J.
The facts and arguments appear suificiently in the judgment.
Blakeney, for the defendant, moved rule absolute.
Lilley appeared for the justices, to show cause.
C.A.V.
LtTTWYCHE J. : A rule was obtained on the 6th of February last,
on the part of John Ferret, calling on the abovenamed justices,
and William Miles, to show cause why they should not be pro-
hibited from proceeding on a conviction pronounced against
Ferret on the 21st January last, and why a fine of £10 and costs
should not be refunded.
The information and conviction (under the Act of Council
17 Vic, No. 3, s. 6), described Ferret's offence as the " illegal
possession and branding of a filly," and consequently the infor-
mation and the conviction are bad on the face of them, as pointed
out in the fourth ground upon which the rule was obtained.
The offence described in the section is a " taking, using, or
working " of cattle without the owner's consent ; but instead
of following the words of the Act, as s. 10 prescribes, the infor-
mation and conviction charge an illegal possession and branding,
which might indeed be evidence of a taking, or using, without the
owner's consent, but which is not declared by the Act to be an
offence per se. The point is so clear that I should not have
thought it necessary to deliver a written judgment, if Mr.
Blakeney had not applied for the costs of the day against the
magistrates, who had retained Mr. Lilley to appear in support
of the conviction, after having been officially informed by the
Attorney-General that the conviction could not be sustained. The
applicant was thereby put to unnecessary expense in employing
counsel to support the rule ; and if this had not been the first time
that the question had arisen, I should have made the rule for a
prohibition absolute, with the costs of the day to be paid by the
magistrates. But it must be distinctly understood that, in future,
the magistrates will be visited with costs, if the conviction be
quashed, whenever they choose to employ counsel •to support
their view of the law, after having been informed by the highest
legal authority at the bar that the matter is not arguable. Their
official position enables them to obtain gratuitously the advice
and assistance of the Attorney-General, and if he tel s them
CRIMINAL REPORTS, 1860-1907. 13
they have mistaken the law, as all men may do sometimes, they K. v. Wilson,
, . Ex parte FssRET.
ought to acquiesce, and not oppress a person who has been
illegally convicted by putting him to expense which he may not Lutwyohe J.
be so well able to afford as themselves. In the present case,
however, the rule for a prohibition must be made absolute without
costs.
R. V. PUGH.
[1 S.C.R. 63.— Note.— See now ss. 44 and 52 ol Criminal Code. 11 Vic, No. 13,
s. 10, referred to in tlie judgment, is repealed, see now s. 376 ol Ciiminal Code.
Also 25 Vic, No. 17, and 13 Vic, No. 8, mentioned in the judgment, are since
repealed.]
Seditious libel — Information by Attorney -General, ex officio, by 1862.
resolution of the Legislative Council — Charge to jury in trial aSrd^Augmt.
for seditious libel — Law and custom of Parliament — 32 Oeo. Luucyche J.
III., c. 60, s. 1.
The Attorney-General, ex officio, by direction of the Legislative pouncil of
Queensland, filed an information against the printer and publisher "of a newspaper,
for an alleged seditious libel on that body.
LuTWYCHE, J., charged the jury that a seditious libel could not be published
of and concerning the Legislative Council.
Ikfoemation presented by the Attorney-General, ex officio, at
the request of the Legislative Council, against Theophilus Parsons
Pugh, for having printed and pubHshed in the Courier, on 30th
July, 1861, a seditious Ubel of and concerning the Legislative
Council of Queensland.
Pring A.G. and Bramston prosecuted.
Gore Jones and Carey for the defendant.
A plea that the Court had no jurisdiction, as being illegally
constituted, was overruled. The learned Judge stated that he
held his commission under the Imperial Statute, 18 and 19 Vic,
c. 54, and referred to the order of Council of 5th June, 1861.
A plea of not guilty was then entered.
LxTTWYCHE J., at the conclusion of the trial, delivered the ^ , , ^
Lutwyohe J,
following charge to the jury :—
14
QUEENSLAND JUSTICE OF THE PEACE.
PUGH
Lutwyche J.
Gentlemen of the jury.— The defendant in this case, Theophilus
Parsons Pugh, is charged by the Attorney-General, acting ex officio,
with the publication of a false, scandalous, malicious, and seditious
libel in the Courier of 30th July last, of and concerning the Legis-
lative Coiincil of this colony. The defendant has pleaded " not
guilty " to the information which has been filed, and you are to
say by your verdict whether you think the defendant has pub-
lished a seditious libel or not. There are reasons, gentlemen, for
desiring that this case should have been tried before any other
Judge than myself. The article in the Courier, which is alleged
to reflect in a seditious manner on the Legislative Council, con-
tains a warm defence of the conduct of Mr. Justice Lutwyche, as
well as a warm attack upon the conduct of the Legislative Council,
in reference to the present Judge of the Supreme Court. I am
placed, therefore, in a very invidious position, and the duty
M'hich I have to perform this day is far from being agreeable to
me. But, gentlemen, whether the performance of a duty be agree-
able or not, a duty must be discharged, and I shall endeavour to
fulfil mine in such a manner as to leave as little occasion as
possible for unfavourable comment. I shall deal with this case
precisely in the same way, and direct you on points of law in the
same terms, as if the Judge whose conduct has been censured by
the Legislative Council were my colleague on the Bench, or say,
for instance, the gentleman who is senior in point of standing at
the Bar, Mr. Blakeney. I shall pursue in this case the same
course which I have invariably followed ever since I have had the
honour of a seat on the Bench of the Supreme Court, in civil
actions for libel and slander. I shall not express any opinion
of my own upon the alleged calumnious character of the pubUca-
tion, nor shall I say what I think of the conduct of the defendant
in relation to the circumstances which have been disclosed by the
evidence. But I shall be bound to tell you whether this pubhca-
tion, assuming it to contain a false, scandalous, and maUcious
libel upon the Legislative Council, amounts to a seditious libel, for
that, as the case now stands, is purely a question of law ; and, as
there is no appeal from my decision in criminal matters, I thought
it right, in order that I may neither be misunderstood nor mis-
quoted, to reduce my charge into writing.
As you will perceive, I have anticipated all the points which
have been raised at the bar, and have considered some points
which have not been urged by counsel, but which, nevertheless,
appear to me necessary to be discussed, in order to arrive at a
CRIMINAL REPORTS, 1860-1907. 15
proper understanding of the great constitutional question involved ^- *'• P""^-
in this trial. Lutwyche J.
(The learned Judge here read over the information and the
notes which he had taken of the evidence, and then proceeded
as follows) : —
I am constrained, in the outset, to express my disapprobation of
the manner in which this information has been drawn. In the
copy which lies before me, there is much matter which does not
reflect on the Legislative Council in any way. I suppose, to save
trouble, it was deemed expedient to insert the article in the
Courier entire, but such a course is hardly fair towards a defendant,
as it must tend to distract his attention from the charge which
he has to meet, and it swells the costs of the defence, which,
whether he be convicted or acquitted, the defendant will have to
pay. I hope I shall not have occasion, in any future prosecution
for a libel, to repeat these remarks.
Gentlemen, the offence known to the law as libel consists in
the malicious publication of defamatory matter, expressed either
in writing or in printing, or by signs or pictures, and which
publication tends either to corrupt the mind of the public, and
to destroy the love of decency, morality, and good order ; or,
in the case of an individual, to expose him to hatred, ridicule, or
contempt. A private individual may bring an action to recover
damages for the injury done to his character by such a publication ;
but the ground of the criminal proceeding is the public mischief
which libels are calculated to create in alienating the minds of
the people from religion and good morals, and rendering them
hostile to the Government and magistracy of the country, and,
where particular individuals are attacked, in causing such irrita-
tion in their minds as may induce them to commit a breach of
the public peace. (1 Russell on Crimes, p. 211, Ed. 1826.) It
appears to have been considered at one time that the remedies
by action and indictment for libels were co-extensive, and might
be regarded as upon the same footing, but this could formerly
only have been understood of cases where the libel, from its
nature and subject, inflicted a private injury, and not of those
eases in which the public only could be said to be affected by the
libel. Now, however, by the Act 11 Vic, No. 13, s. 10, it is
provided that on the trial of any indictment or information for
a defamatory libel, the truth of the matters charged may be
inquired into, if it be alleged by the defendant that it was for the
public benefit that the matters so charged should be pubUshed,
16
QUEENSLAND JUSTICE OF THE PEA.CE.
E. V. PoGH. and if he set forth the particular fact or facts by reason whereof
Lutv^Se J. it was for the pubUc benefit that the matters so charged should
be pubhshed. But this section does not apply to seditious
libels (R. V. Duffy, 2 Cox C.C. 45, Rose on Evidence, p. 655, Ed.,
1857) ; and, consequently, in pleading to the present information,
the defendant was restricted to the plea of " not guilty," under
which plea evidence is receivable to show either that he never
published the alleged libel, or that the matter contained in- it is
not seditious, and was justified by the occasion on which it was
published. The intention may be collected from the libel,
unless the mode of pubUcation, or other circumstances, explain
it, and the pubhsher must be presumed to intend what the publi-
cation is Ukely to produce, so that if it is likely to excite sedition,
he must be presumed to have intended it to have that effect.
(Pex V. Burdett, 4 B. & A. 95).
Gentlemen, there can be no doubt that an information may be
supported for the pubUcation of a false, scandalous, and malicious
libel on the Legislative Council or the Legislative Assembly of this
colony. The two Houses of Legislature have very important
functions to discharge, and are on that account entitled to con-
sideration and respect. Not only do they assist in the making of
the laws by which we are governed, but they form the grand
inquest of the colony ; and, by a recent colonial enactment (25
Vic, No. 7), extensive powers, which did not belong to them at
common law, have been conferred on them in order that their
deUberations may be carried on in perfect tranquility and with
greater efficacy than before. The utmost freedom of debate
is allowed, and any member of either house may say within its
walls whatever he pleases of any person not being a member,
without being responsible, either civilly or criminally, for the
consequences. No doubt this privilege may be abused, but no
human institution is perfect. Unfortunately, experience teaches
us that men whom neither nature nor education have fitted for
the position, occasionally find their way into Colonial Legislatures,
and even into the Imperial Parliament. Men of this stamp,
sometimes from mere thoughtlessness, sometimes from the
working of an ill regulated mind, indulge themselves by scurrilous
attacks upon public and private character, and knowing they
have, to quote the language of Mr. Justice Coleridge {Stockdale v.
Hansard, 9 Ad. and Ell. 242) a legal monopoly in slander, are apt
to make the most of the commodity. For all this there is n"
redress, save in the expression of public opinion, and public opinion
CRIMINAL REPORTS, 1860-1907. 17
generally finds a channel for expression in the public press. The ^' ''•^<*°-
privileged slanderer is not protected from public criticism, pro- Lutwyohe J.
vided the criticism be fair and honest. And this rule applies
not merely to an individual member of either house, but to each
house and both houses collectively.
I have said that the Legislature is a grand inquest of the colony.
If, however, it should proceed without inquiry — if, while acting
in a qiiasi judicial manner, it should acscept surmises and insinua-
tions as proofs, and deal with suspicions as conclusive evidence
— a public writer would be justified in commenting upon such
conduct with freedom, and even with severity. " I think it
quite right," says Lord Chief Baron Pollock, in Gathercole v.
Miall (15 M. & W. 332), " that all matters that are entirely of a
public nature, conduct of Ministers, conduct of Judges, the
proceedings of all persons who are responsible to the pubhc at
large, are deemed to be pubhc property, and that aU bona fide
and honest remarks upon such persons and their conduct may
be made with perfect freedom and without being questioned too
nicely for either truth or justice." In the same case, Mr. Baron
Alderson observes (p. 338), " It seems there is a distinction,
although I must say I reaUy can hardly tell what the Hmits of it
are, between the comments on a man's public conduct and upon
his private conduct. I can understand that you have a right
to comment on the public acts of a Minister, upon the public
acts of a general, upon the public judgment of a judge, upon the
public skill of an actor — I can understand that ; but I do not
know where the limit can be drawn distinctly between where the
comment is to cease, as being applied solely to a man's conduct,
and where it is to begin, as applicable to his private character ;
because, although it is quite competent for a person to speak
of a judgment of a judge as being an extremely erroneous and
foolish one (and, no doubt, comments of that sort have a great
tendency to make persons careful of what they say) ; although
it is perfectly competent for persons to say of an actor that he is a
remarkably bad actor, and ought not to be permitted to perform
such and such parts so ill ; yet you ought not to be allowed to
say of an actor that he has disgraced himself in private life,
nor to say of a judge or Minister that he has committed felony,
or anything of that description which is no way connected with
•iis public conduct or pubhc judgment." And, therefore, gentle-
men, if any pubhc writer, or speaker at a pubhc meeting, should
comment, as he has a perfect right to do, on the proceedings
18
QUEENSLAND JUSTICE OP THE PEACE.
E. V. Pdqh.
Lutwyche J.
of either house of the legislature, or on the conduct of members of
either house, he must confine his remarks to their behaviour as
public bodies and pubho men. He would not be justified, for
instance, in saying of one member that he was a murderer (see
Harwood v. Sir J. Astley, 1 B. & P. N.R. 47), or of another, that he
was an adulterer, a gambler, and a drunkard ; or of a third, that
he was a griping landlord and a tyrannical master to his servants.
By making remarks Uke these he would overstep the boundaries
of legitimate criticism, although he might think he had good
reason for beUeving that what he was saying was true. But
the law wiU protect any man in making comment, however
strongly worded, on the public conduct of pubhc bodies and public
men, if those comments be made in good faith and in honest
spirit.
Gentlemen, I have made those observations because it seems to
me that they are much needed at the present juncture. I expected
that the Attorney-General would have filed an information against
the defendant for a scandalous libel reflecting on the Legislative
Council, and, as I have already intimated, there is no doubt that
the publication of such a Ubel, if proved to the satisfaction of a
jury, would subject the offender to severe penalties. It is quite
true that in the mother country prosecutions of this kind have
fallen into disuse. The last case which I have been able to find is
in R. V. Reeves (Peake's Addl. Cases, 84, Ed., 1796), about 65
years ago, in which the prosecution was instituted by the Attorney-
General, in consequence of a resolution of the House of Commons,
declaring a pamphlet published by the defendant to be a libel.
The Imperial Parhament has now no need of prosecution for libels
to support its character and dignity, although they were occa-
sionally instituted in more arbitrary times. Still, the right of
prosecution exists, and if the Legislative Council of this colony
deems it expedient to resort to such proceedings, it will be the duty
of this Court to give them full effect. They must, however, be
commenced in some other way than by an information ex officio.
The usual objects of an information ex officio, are properly such
enormous misdemeanours as peculiarly tend to disturb or endanger
the Queen's Government, or to molest or affront her in the regular
discharge of her royal functions, such as a seditious or blasphemous
libel or words, seditious riots not amounting to high treason, libels
upon the Queen's ministers, the judges or other high officers,
reflecting upon their conduct in the execution of their official
duties, obstructing such officers in the execution of their official
CRIMINAL REPORTS, 1860-1907. 19
duties, and the like (Arch. PI. and Evid. 95, Ed. 1856). The ^- ''_Pcgh.
Attorney-General appears to have been alive to this difficulty, Lutwyche J.
and, therefore, while complying with the request of the Legis-
lative Council to prosecute the publisher of the Courier for a
libel, he has filed an information, not for the publication of a
scandalous but of a seditious libel. By so doing, however, he has
fallen into a graver error than he would have committed if he
had filed an information ex officio against the defendant for the
publication of a scandalous libel on the Legislative Council.
In the latter case I should have been prepared to reserve (under
the Act 13 Vic, No. 8, s. 1) the point about the form of the
information, and the case could then have gone to the jury on its
merits. And, gentlemen, if this course had been taken, I might
very fitly have adopted, as a portion of my charge to you, a
passage from the speech delivered by Mr. Erskine (afterwards
Lord Chancellor) in the case of The King v. Stockdale (22 Howell's
State Trials, 238), to which the Attorney-General has to-day
called the attention of the Court. The defendant in that case
was prosecuted for a Ubel upon the House of Commons by pub-
lishing a review of the charges made by the House of Commons
against Warren Hastings, formerly Governor of India, and
whereby he was impeached of high crimes and misdemeanours.
The review was in fact a defence of the conduct of Warren Hastings,
and, in answering the charge of Ubel against Stockdale, his
counsel, Mr. Erskine, used these memorable words : — " If, after
the performance of this duty (i.e. the reading of the review), you
can return here, and with clear consciences pronounce upon your
oaths that the impression made upon you by these pages is that
the author wrote them with the wicked, seditious, and corrupt
intentions charged by the information, you have then my full
permission to find the defendant guilty. But if, on the other
hand, the general tenor of the composition shall impress you
with respect for the author, and point him out to you as a man,
mistaken, perhaps, himself, but not seeking to deceive others ;
if every line of the work shall present to you an intelligent mind
glowing with a Christian compassion towards a fellow man whom
he believed to be innocent, and with a patriot's zeal for the liberty
of his country, which he considered wounded through the sides
of an oppressed fellow citizen ; if this shall be the impression
on your consciences and understanding when you are called upon
to deliver your verdict, then hear from me that you not only
work private injustice, but break up the press of England, and
20 QUEENSLAND JUSTICE OF THE PEACE.
R. V. Pnoa. surrender her rights and liberties for ever, if you convict the
Lutwyohe J. defendant."
These words, gentlemen, with a few verbal alterations which will
easily suggest themselves to your mind, would have appropriately
formed a portion of my charge to you if the defendant in this
case had been indicted for the publication of a false, scandalous,
and malicious libel. But the information charges the pubHcation
of a seditious Ubel, and I am bound to tell you that, in point of
law, no seditious Ubel can be published of and concerning the
Legislative Council of this colony. What, gentlemen, is sedition ?
It is defined to be a factious commotion of the people, or a.
tumultuous assembly of men rising in opposition to law or the
administration of justice, and in disturbance of pubUc peace
(Webster's Diet.). The precedents for seditious libels and words
always charge an intent to stir up and excite discontents and
seditions among Her Majesty's subjects, or to excite them to
insurrections, riots, and breaches of the peace ; and if this be the
language of the precedents, it shows what the law is, for pleading is
the language of the law. Such an intent must be alleged and
proved before any man can be convicted of the pubUcation of a
seditious libel. Does the present information charge any such
intent ? It does not. It charges, indeed, an intent to bring
the Legislative Council into hatred and contempt with " the
subjects of the colony " — a clumsy and inaccurate expression —
but such an intent, even if carried into execution, would not
amount to sedition at common law. It is said by a learned
writer on the law of libel (Starkey on Libel, 535), that the same
policy which prohibits seditious comments on the King's conduct
and government, extends, on the same grounds, to similar reflec-
tions on the proceedings of the two Houses of ParUament. With
great respect for the authority of that distinguished lawyer,
I yet entertain strong doubts whether even the two Houses
of the Imperial ParUament had power, at common law, to direct
a prosecution for a seditious Ubel on either of them. The only
two cases cited by the Attorney-General to show that the House
of Commons had an inherent power to direct a prosecution
for seditious libels were R. v. Almon (20 Howell's State Trials,
803), and R. v. Stockdale already referred to. In the former
case the defendant's offence was the publication of " Junius's
Letter to the King," tied the information contained two counts,
the first charging a seditious pubUcation against the King, his
ministers, and the House of Commons, and the second charging
CEIMINAL REPORTS, 1860-1907. 21
a seditious publication against the House of Commons. The ^^ "• ^^°^-
defendant was convicted, and, as it was at that time considered Lut^^e J.
by all lawyers that an indictment might be sustained if one
offence known to the law were duly set forth in it, I can easily
understand why the counsel for the defendant did not take
any steps to arrest the judgment on the ground that the second
count of the information was bad. It is now settled, however,
by a comparatively recent decision of the House of Lords
{O'Connell v. The Queen, 11 CI. & F., 155), that if there be one bad
count in an indictment, and a general verdict of guilty be taken
on all the counts, the judgment must be arrested. In Stockdale's
case the defendant was acquitted, and no opportunity, therefore,
was afforded for testing the validity of the information.
These two cases are the only precedents to show what the
practice of the House of Commons has been ; but, as Lord Denman
observes in Stockdale v. Hansard (9 Ad. and E. 155)—" The
practice of a ruling power in the state is but a feeble proof of its
legality." And the doubts which I have expressed are greatly
fortified by the subsequent passing of a statute (60 Geo. III.
and 1 Geo. IV., c. 8) containing provisions which would have been
unnecessary if the House of Commons had, at common law, the
power which was claimed for them. That Act, which was passed
in times of great political commotion — about the period of what
are termed the Manchester Massacres and the Cato Street Con-
spiracy— enacted that a hbel tending to bring into hatred or
contempt either House of Parliament was a seditious libel. The
enactment, however, has remained a dead letter on the statute
book ; but it is quite clear that its operation was intended to
be confined to the two Houses of the Imperial Parliament, and
iad no reference to any existing colonial legislature, to say
nothing of a legislature which was not created till forty years
afterwards. And, whether the Imperial Parliament possessed at
common law the power of prosecuting for a seditious libel or not,
it is now well settled that the law and custom of Parliament,
under which such a power might have been claimed and exercised,
applies exclusively to the House of Lords and House of Commons
in England. (Fenton v. Hampton, 11 Moo. P.C. Cas. 347.) The
law and custom of Parliament is founded on precedents and
immemorial usage, under cover of which a ruling power in the
state " has committed many acts which posterity has unequivo-
cally condemned." By the creation of a local legislature, such
powers only are conferred upon it as are reaonably necessary for
22 QUEENSLAND JUSTICE OF THE PEACE.
B. V. PnoH. the proper exercise of its functions and duties (Kielley v. Carson, 4
Lutwyche J. Moo. P.O. Gas. 63). We owe allegiance to the Queen and obedi-
ence to the lawful commands of the Queen's Government ; but
the Legislature of Queensland forms no part of the Government,
Theoretically, as well as practically, the Legislature and the
Executive are separate bodies with distinct functions, and any
attempt to amalgamate them would only result in confusion and
disorder.
The objection to the sufficiency of the information appears on
the record, and the defendant may take advantage of it, either
by a motion in arrest of judgment, or by a special case under the
Act 13 Vic, No. 8. As he has pleaded to the information, it wifl
now be for you, gentlemen, to say whether the defendant haa
published a seditious libel, or whether you think that the article
which was published in the Courier on 30th of July was justified by
the occasion of its pubHcation. I have already said that in point
of law a seditious libel cannot be published of and concerning the
Legislative Council, though a scandalous libel may ; and you are
to say whether you will adopt my opinion of a seditious libel or
not ; and, unless you are satisfied that I am wrong, you will
take the law from me. In giving you, gentlemen, this direction,
I follow the precise terms of a direction given by a very learned
judge in a similar case (Rex v. Burdett, 4 B. & A. 95), and which
direction was considered by the Court of King's Bench to be a.
correct mode of leaving the question to the jury under 32 Geo. III.,
c. 60 (Mr. Fox's Libel Act). You will now, gentlemen, be pleased
to consider your verdict.
Verdict :— " Not guilty."
Solicitors for defendant : Lilley ds Garrick.
CRIMINAL REPORTS, 1860-1907. 23
[In Banco.]
R. V. BENNETT.
[1 S.C.R. 109,— Kote.— See now s. 427 of Criminal Code. 29 Vic, No. 6, s. 94,
mentioned in footnote, is repealed.]
7 cfc 8 Geo. IV., c. 29, s. 5Z— False pretences—'' Chattel "—Credit. 1863.
21st August.
Bread, meat, drink, and refreshments are " chattels " within the meaning of
7 & 8 Geo. IV., c. 29, s. 53.* C<'c'^'« C? ■'■
Ceown Case reserved by Lutwyche J.
Bennett was charged at the Ipswich Assizes with having
obtained " bread, meat, drink, and refreshments " from one
Jackson Curry by a false pretence. He was found guilty and
sentenced, but Lutwyche J. reserved for the opinion of the Court
in Banco the question whether " bread, meat, drink, and refresh-
ments," as charged in the information, were chattels within the
meaning of 7 & 8 Geo. IV., c. 29, s. 53.*
Blakeney, for the prisoner, cited R. v. Gardner (25 L.J., M.C.,
100) ; R. V. Kenrick (5 Q.B. 49) ; R. v. Crossley (2 Moo. & R. 17).
The Court answered the question in the af&rmative, and affirmed
the conviction.
Pring A.G. begged the leave of the Court to say that many
cases came before him, as grand jury of the colony, similar to
this ; and he believed in this the real question was that credit
had been obtained from Jackson Curry.
The Court stated they were of opinion that, from the case as
stated, even if credit had been obtained, the chattels had also
been obtained, and that question would not affect the present
case.
* 7 & 8 Geo. IV., c. 29, a. 53. And whereas a failure of justice frequently
arises from the subtle distinction between larceny and fraud for remedy thereof
be it enacted that if any person shall by any false pretence obtain from any
other person any chattel money or valuable security with intent to cheat or
defraud any person of the same every such offender shall be guilty of a misde-
meanour and being convicted thereof shall be liable at the discretion of the
court to be transported beyond the seas for the term of seven years or to suffer
such other punishment by fine or imprisonment or by both as the Court shall
award. Provided always that if upon the trial of any person indicted for such
misdemeanour it shall be proved that he obtained the property in question in any
such manner as to amount in law to larceny he shall not by reason thereof be
entitled to be acquitted of such misdemeanour and no such indictment shall be
removable by certiorari and no person tried for such misdemeanour shall be
liable to be afterwards prosecuted for larceny upon the same facts. — Pring's
Stat., p. 344. (But see now 29 Vic, No. 6, a. 94.)
Lutu-yche J.
24
QUEENSLAND JUSTICE OF THE PEACE.
R. V. COLLINS.
[1 S.C.R. 112.— Note.— See ss. 571 and 596 ol Criminal Code.]
1864. Information — Objection to — Time for objection — Commission of
SUtjuly. Crown Prosecutor.
Lutwyche J. A prisoner, arrainged on a charge o£ murder, pleaded not guilty His counsel
then took objection to the prisoner's trial on the information filed against him,
on the ground that it was signed by a Crown Prosecutor who was not acting under
a valid commission.
Held, that the objection was taken too late, as the prisoner had already pleaded
over.
Tbial of Michael Collins at the Toowoomba Assizes on a charge
of murder.
Blakeney, for the prisoner.
Prisoner, who was indicted for murder, on his arraignment,
pleaded not guilty.
Blakeney took a preliminary objection to the prisoner's being
tried on the information to which he had pleaded, as it had
been filed by the Crown Prosecutor, Mr. Gore-Jones, claiming
to act under a valid commission from the Governor, whereas the
commission was not dated when issued, and the date was only
put in by the Attorney-General during the assizes.
Lutwyche J. was of opinion that the objection had been taken
too late, as the prisoner had already pleaded over.
1865.
19th April.
Cockle C.J.
Lutwyche J.
[In Banco.]
R. r. NUGENT.
[1 S.C.R. 135 ; 7 Q.L.J. N.C. 102.— Note.— See now s. 391 of Criminal Code.]
Larceny — Absolute and special property — Felonious intent.
N. was charged with stealing and receiving two kegs of brandy, seized by
K., a sergeant of the poUce, in the execution of his duty. The jury found as a
fact that N. intended to deprive K. of his whole property in the goods, but had
taken them for the benefit of the former owner.
Hdd, that on those facts a conviction of larceny could not be sustained.
R. V. Knight (2 East P. C. 510), foUowed.
Crown Case reserved by Cockle C.J. on the trial of Nugent
at Rockhampton, on an information containing two counts,
charging him with steaUng and receiving two kegs of brandy
CRIMINAL REPOETS, 1860-1907.
25
which a sergeant in the gold escort of poUce had seized in the B" "• Wugent.
execution of his duty, and which, subject to such seizure and its
results, were the property of Smith.
In answer to questions put by the learned Judge, the jury found
the prisoner intended to deprive Kelly of his whole property in
the goods, and that he took them for the benefit of Smith, being
aware of a lawful seizure by Kelly, and that the latter had a
right to the goods as against Smith.
The prisoner was convicted on both counts and sentenced.
The question reserved for the Court was whether, on the facts
so found, a larceny had been committed.
PrifUj A.G., for the Crown, cited R. v. Privett (1 Den. 193),
B. V. Jones (lb. 188).
Cockle C.J. : In E. v. Knight (2 East. P.C. 510), where un- Cockle C J.
customed goods were seized by the prisoners with intent to re-
take them on behalf of their former owner, the presumption of
the felonious intention was rebutted on the finding of the jury.
In R. V. Privett there was an absolute ownership. In R. v.
Knight the property was special. The two cases are distinguish-
able from the one now before the Court, in which there was no
absolute property. We follow R. v. Knight, and avoid the
judgment.
Conviction quashed.
[In Banco.]
R. V. LEWIS.
[1 S.C.R. 138. — Note. — See now s. 619 ol Criminal Code.]
Crown case reserved — Crown prosecutor — Right of reply — District
Court.
The Crown Prosecutor in the Supreme Court has a right to reply, even though
the prisoner caE no evidence.
Qucere whether the same rights exist under The District Courts Act.
Cbown Case reserved by Ltjtwyche J.
The prisoner was tried at the Criminal Sittings of the Supreme
Court at Rockhampton, on the 30th September, 1865, before his
Honor Mr. Justice Lutwyche, on a charge of horse steahng. No
evidence was called for the defence. Bramston, Crown Prosecutor,
claimed a right to reply on the part of the Crown. The learned
1865.
7th December.
Cockle G.J.
Lutwyche J.
26 QUEENSLAND JUSTICE OP THE PEACE.
R. .;^Lewis. Judge allowed the reply, but reserved, for the consideration of the
Full Court, the point whether he was right in allowing such
reply. The prisoner was convicted, and sentenced to one year's
imprisonment with hard labour.
Lilley A.G., in support of the right, referred to 7 C. & P., 676,
where it was stated that, at a meeting of the Judges, a discussion
took place as to certain points likely to occur at the assizes, in
consequence of the recent Act allowing prisoners indicted for
felony to make full defence by counsel. The course of practice
as to the right of reply by the Crown which it was thought most
advisable to adopt, was as follows : — In cases of pubUc prosecu-
tion for felony, instituted by the Crown, the law officers of the
Crown, and those who represent them, are, in strictness, entitled
to the reply, although no evidence is produced on the part of
the prisoner.
The Court were of opinion that Mr. Bramston, being duly
authorised to represent the Attorney-General, had the same
right as the Attorney-General ; but that it must be understood
that they gave no opinion as to whether the same rights extended
to Crown Prosecutors under The District Courts Act.
1866.
5th Septeviber.
Cockle G.J.
Lutwyche J.
[In Banco.]
REGINA V. ATTWOOD.
[1 S.C.R. 146.— Note See ss. 567 and 568 ol Criminal Code.]
Information — Counts for felony and misdemeanour — Amendment
refused — Plea.
An information contained a count for felony, with a count for a misdemeanour.
Leave to amend was refused. The accused pleaded, and no evidence was offered
on the felony, and the prisoner was convicted of the misdemeanour.
Held, that the conviction as to the misdemeanour must be sustained.
B. V. Ferguson (27 L.J. M.C. 61) followed.
Cbown Case reserved by the Judge of the MetropoHtan District
Court, at Brisbane.
The prisoner was tried, on the 14th August, on an information
charging him with obtaining goods under false pretences, by utter-
ing a forged cheque ; and also with feloniously stealing the said
goods. At the trial, objection was taken to the indictment, and
leave to amend, by striking out the count for the felony, was
CRIMINAL REPORTS, 1860-1907.
27
refused. The prisoner pleaded, and a verdict of guilty was found
on the first count, and sentence passed, the learned Judge reserv-
ing, however, the question whether the conviction could, under
the circumstances, be sustained.
The prisoner in person.
Cockle C.J. delivered the judgment of the Court as follows : —
The occasions for amendments should be few, and should only
arise under circumstances which could not have been f-oreseen
by the draftsman if he had used reasonable foresight. It seems
that the learned Judge refused to exercise those powers of amend-
ment which, if they have the effect of leading to looseness of
criminal pleadings, and are made the means of casting on the
Judge the duty of the clerk of indictments, will prove of question-
able pubhc utility, and will probably lead to evils as great, at
least, as those they were intended to obviate. The information,
combining as it did, a count for felony with a count for mis-
demeanour, was improperly framed ; but we are not called upon
to discuss the mode of rectifying the irregularity : we have only
to consider the information as tried, and, in so doing, we presume
that the prosecutor elected, or was put to his election, and that
the prisoner was not embarassed in his defence. He made, as
it seems, no application to quash the information, but pleaded
to it ; and no evidence was offered on the count of felony. Under
these circumstances we think the conviction must be sustained,
and we are supported in this view by the analogous case (the
converse of the present) of E. v. Ferguson (24 L.J.M.C. 61, Dears
C.C. 427), and we affirm the conviction accordingly.
BEaiNA V.
AiTwooi).
[In Banco.]
REGINA V. HENNESSY.
[1 S.C.R. 147 Note. — See s. 619 of Criminal Code. Case referred to in R. v.
Walsh and Bunting (1902, S.R.Q. 6, at 8.]
Crown Prosecutor — District Court — Right of reply where prisoner
calls no evidence.
No counsel, excepting the Attorney-General, on behalf of the Crown, or a
counsel representing the Attorney-General and so acting, can reply, as of right,
on the defence of a prisoner who adduces no evidence.
Crown Case reserved by Sheppard D.C.J.
1866.
5th September.
Cockle C.J.
Lutwyche J.
28
QUEENSLAND JUSTICE OF THE PEACE.
Begina cj.
Heknesst.
Cockle C.J.
The prisoners were tried in the District Court at Brisbane, on
13th June, 1866, on an information preferred by the Crown
Prosecutor for the Metropolitan District, on a charge of horse
stealing. No witnesses were called or examined for the prisoners,
but on the conclusion of the case for the Crown, their advocate
addressed the jury. At the close of his address, the Crown
Prosecutor claimed a reply, which was objected to by the prisoners'
advocate, no witnesses having been examined for the defence.
The right having been insisted upon, the learned Judge allowed
it ; but, on the appHcation of the prisoners' advocate, reserved
the question for the consideration of the Supreme Court. The
prisoners were convicted, and each sentenced to two years'
imprisonment with hard labour.
Qore Jones, for the Crown.
Murphy, for the prisoners.
Cockle C.J. : No counsel, excepting the Attorney-General, on
behalf of the Crown, or a counsel representing the Attorney-
General and so acting, can reply as of right, on the defence of a
prisoner who adduces no evidence. This is a rule of law regulating
practice, and not a mere matter of practice depending on the
arbitrary discretion of judges. Whether the rule be inflexible is a
point we need not enter upon, for the case suggests no special
circumstance occasioning a departure from the general rule.
The case does not state, and we cannot presume that the District
Court Crown Prosecutor represented or ever assumed to represent,
the Attorney-General. It would, perhaps, have been better if the
commission under which the Crown Prosecutor had acted had
been set out, but we do not think it necessary to send the case
back to be re-stated ; for having been furnished by direction
of the Attorney-General with copies of the commission, certified
by our Registrar's clerk, we cannot see that its contents would
lead to any substantial modification of the case. It may he
presumed, then, upon the case as stated, that the right of the
District Prosecutor to reply on the defence of prisoners on whose
behalf no witnesses were examined, arose as a question of law on
their trial. It may be further presumed that this right, which
was insisted upon, was held to inhere in him simply as Crown
Prosecutor, and in virtue of his office only. On these presumptions,
which arise upon the case as stated, we think that the decision
was wrong ; and, being of opinion, that a question of law which
arose on the trial was wrongly decided, we avoid the conviction,
and order all necessary and proper entries to be made accordingly.
CRIMINAL REPOETS, 1860-1907.
29
LuTWYCHE J. : The practice of the Court is the law of the
Court, and very great injustice might be occasioned by a departure
on the part of the judge from long established usage. For
instance, he might refuse the prisoner permission to cross-examine
the witnesses for the Crown, or deny him the privilege conferred
upon him by statute of being heard in his defence by counsel.
These weU-known legal rights would be taken away from him,
yet no record of it could be preserved, and unless we had the
power of determining such questions of law, the prisoner could
have no remedy.
Regina v.
Hennesst.
Lutwyohe J.
R. V. GRIFFIN (No. 1).
[1 S.C.R. 176.]
Criminal law — Murder — Evidence — Other felonies — A dmissihility
of motive — Res gestae.
On the trial of a prisoner for murder, evidence is admissible of other felonies
committed by him where they prove a motive for the commission of the crime
or form part of the res gestae.
Ceowk case reserved by Lutwyche J., at the Rockhampton
Assizes, held on March 16th, 1868.
The prisoner, Thomas John Griffin, was indicted for the wilful
murder of John Power and Patrick Cahill, at the Mackenzie
River, on the 6th November, 1867. At the trial, the Attorney-
General, who prosecuted on behalf of the Crown, in opening the
case, stated that the prisoner, who had been Police Magistrate
and Gold Commissioner at Clermont, had received in that capacity
from certain Chinamen various sums of money, amounting to
£252, to be forwarded to Rockhampton ; that he arrived in
Rockhampton on the 19th of October, 1867, and was immediately
applied to by the Chinamen, and by others on their behalf, for
the money, but did not pay them then ; that the deceased troopers
were, on the 29th October, members of the Clermont gold escort ;
that on Tuesday, 29th October, the prisoner sent Power, one of
the deceased, from the camp, about four miles from Rockhampton,
to the bank for certain money to be conveyed to Clermont, and
that Power received from the bank four parcels, each containing
1,000 £1 notes ; that Power returned to the camp the same
evening without any money or parcels ; that prisoner obtained
the money from Power when he got out of town, and that the
1868.
12th May.
Cockle C.J.
Lutwyche J.
80 QUEENSLAND JUSTICE OF THE PEACE.
B. V. GKirFiN money remained in his possession till Friday, the 1st of November ;
*^!li'' that on Wednesday, the 30th October, he met the Chinamen
before referred to at the Club in Rookhampton, and repaid them
the money he had received from them at Clermont in £1 notes
which had been among those delivered to Power on the previous
day by the bank ; that, on the 1st of November, the prisoner, at
the request of Power and Cahill, with whom he was about to
start on the road to Clermont, sealed up with his own seal in
a canvas bag the parcels of notes then in charge of the deceased ;
that the prisoner, having robbed the parcels, and having sealed
the bag, was apprehensive that on the arrival of the escort at
Clermont the robbery would be discovered and that he would be
accused ; and that to save himself he accompanied Power and
Cahill on the road as far as the Mackenzie River, and there
murdered them. Evidence was given at great length, tending
to prove that the prisoner, before leaving Rookhampton, had taken
some of the notes from the parcels. The whole of that evidence
was objected to by the prisoner's counsel, on the ground, among
others, that evidence of one felony was not admissible against a
prisoner charged with another distinct felony. The evidence was,
however, admitted ; but Lutwyche J., before whom the a,ction
was tried, reserved the point of the admissibility of such evidence
for the opinion of the Full Court.
The prisoner was convicted and sentenced to death.
McDevitt, Hely, and Grifjfith, for the prisoner. With regard to
the objections raised against the admissibility of the evidence, the
Court has to decide whether the evidence tending to prove the
abstraction of the notes was admissible, inasmuch as it was evi-
dence of a distinct felony from that with which the prisoner was
charged in the indictment on which he was tried. In considering
whether that evidence was properly received or not, it is neces-
sary to refer to the general rules of law as to the admission of
testimony to understand how far evidence can be received of
points not in issue before the Court. It has been laid down
that the general rule upon the subject, in criminal as well as
civil cases, is, that nothing should be given in evidence which
does not directly tend to prove or disprove the matter at issue
(Archbold's Criminal Practice, page 200). In criminal pro-
ceedings evidence must be confined to the point in issue. Where a
prisoner is charged with an offence, it is of the utmost importance
that the facts laid before the jury should consist exclusively of the
facts charged in the indictment. It is a general rule that the facts
CRIMINAL REPORTS, 1860-1907. 81
proved must be strictly relevant to the particular charge. It is
not allowable to show upon the trial on a particular indictment
that the prisoner has a disposition to commit the same kind of
offence as that for which he stands indicted (3 Russell on Crimes,
Book v., Cap. II., p. 279, s. 2). One of the chief objects of an
indictment being to afford distinct information to the prisoner
of the specific charge about to be brought against him, the ad-
mission of any evidence unconnected with that charge must
clearly be open to the serious objection of taking the prisoner
by surprise. No man can be called upon, or be bound at the
peril of life, liberty, fortune, or reputation, to answer at once, when
unprepared, for every action of his Ufe (Taylor on Evidence,
Vol. I., p. 303). The rule to which allusion has been made is
qualified by numerous exceptions (to which reference will briefly
be made) which the proper dispensation of justice requires ; but
the evidence which has been admitted does not come within any
of the exceptions. 1. The first exception is the inseparability
of the transaction. When the several felonies are so mixed up
as not to be separated without great inconvenience to the prosecu-
tor, evidence of aU will be admitted (3 Russell on Crimes, 285 ;
Rex V. Hinley, 2 M. & R. 524). Upon that first exception evidence
of the nature of that which has been allowed at this trial cannot
be admitted, unless the grounds for its admission are so strong,
so patent, and so urgent, as to override the proposition so clearly
laid down by the authorities quoted. 2. The next exception is
when the felonies are so connected as to form one entire trans-
action. Where several felonies are connected together and form
part of one entire transaction, evidence may be given on the
hearing of a charge of one of them to show the character of the
others (3 Russell, 281 ; Bex v. Ellis, 6 B. & C, 145 ; R. v. Birdseye,
4 C. & P. 386 ; Rex v. Wylie, 1 New Rep. S.C. 94 ; Taylor on
Evidence, p. 334). Evidence of the robbery which took place
several days, if not a week, before the crime with which the
prisoner was charged, if admitted, at all, should have been ad-
mitted on the ground that it formed part of one entire transaction.
In most cases in which such evidence has been admitted there
were felonies of the same character. 3. The third exception, to
ascertain the identity of the article stolen, does not bear much
upon the case. In cases in which it is necessary to identify
the articles stolen, evidence of felonies other than the one charged
in the indictment is admissible (3 Russell, p. 280). 4. The
fourth exception is to prove guilty knowledge. When it becomes
E. V. Gkiffin
(No. 1).
82 QUEENSLAND JUSTICE OF THE PEACE.
^ (No^Tr"' "lecessary to prove guilty knowledge on the part of the prisoner,
evidence of other felonies committed by him, though not charged
in the indictment, are admissible for that purpose (3 Russell, p.
287 ; Archbold, p. 201 ; Taylor, p. 341 ; Eex v. Oddy, 2 Den.
C.C. 264) . Before the Court can allow the evidence of the robbery,
they must decide whether evidence of the possession of the
stolen property by the prisoner in Rockhampton was evidence
of his murder of the troopers some days after. 5. Evidence
of other felonies than that charged in the indictment may some-
times be admitted to prove guilty intent, but the possession
of the stolen notes does not tend to prove that the prisoner
intended to murder the troopers, and therefore the evidence is
inadmissible. (3 Russell, page 288. Taylor, page 341). Such
evidence is usually admitted when there is a question of malice,
but the evidence was not offered upon that ground in the present
case, and there was no direct evidence to support such an assertion.
LuTWYCHE J. : Does not the evidence tend to show pre-
meditation or deUberation on the part of the prisoner ?
MacDevitt : Still evidence of premeditation is not admissible
unless it comes within some recognised exception to the rule, which
says that no evidence shall be given except that which goes directly
or indirectly to prove the guilt or innocence of the prisoner, and
evidence of malice prepense must have reference directly to the
act of murder. Even if the prisoner admitted that he had com-
mitted another felony, it could not be used as evidence against
him in the case he was being tried for. On the grounds men-
tioned the conviction cannot stand. He cited also R. v. Clewes
(4 C. & P. 221) ; R. v. Ellis (6 B. & C. 147) ; B. v. Oddy (2 Den.
C.C. 264) ; R. v. Butler (2 C. & K. 221) ; R. v. Geering (18 L.J.,
N.S., M.C. 215) ; R. v. Toke (Roscoe's Nisi Prius, 288).
Pring A.G. and Lilley Q.C., for the Crown.
Cockle C.J. : We will not trouble the learned counsel for the
Crown.
Pring A.G. : It might assist the Court if I refer to the cases of
R. V. Palmer (see Report in Wills on Circumstantial Evidence) in
which evidence of a forgery committed by the prisoner was given
in support of the charge of murder ; R. v. Courvoisier (9 C. & P-
362) ; R. V. Garner (3 F. & F. 681) ; and R. v. Dossett (2 C. & K.
306).
CRIMINAL REPORTS, 1860-1907.
33
Cockle C.J. : It is due to Mr. MacDevitt, who has zealously
and learnedly argued the case on behalf of the convicted prisoner,
that the Court should give reasons for the decision to which we
have now come. We fully assent to much, or the greater part,
of what has been energetically urged upon us by Mr. MacDevitt.
If evidence were tendered when a man is on his trial for one offence,
of his having been guilty of another offence, and if such evidence
were tendered for the purpose of showing that he was a man of
vicious disposition, and therefore Ukely to have committed the
offence for which he was tried, such evidence would be not merely
irrelevant, but inadmissible, and its admission would vitiate the
verdict. Supposing that, in the case of a man on his trial for one
offence, evidence is tendered to show that he had been reasonably
suspected of having committed another offence, and that he was
a man of bad reputation and character, and so the more Hkely to
have committed the first offence, such evidence would be clearly
inadmissible, and would also vitiate the verdict. The Court
will even go the length Mr. MacDevitt has gone, and say that if a
man were on his trial for one offence, and evidence were tendered to
show that he had admitted that he had perpetrated and committed
an offence Uke that for which he was being tried, and that he
had been tried, and that he had a strong predisposition to commit
the offence, then such evidence ought to be excluded, and if
admitted the verdict would be vitiated. But, supposing evidence
were tendered which, while inadmissible on account of some of
the reasons I have stated, was admissible on some other ground,
why then the single ground for admission would override aU the
grounds for exclusion, and the evidence must be admitted in the
case to be dealt with, according to the rules of law and evidence,
by the tribunal before which the man was being tried.
Now, is there any reason in the present case which will justify
the admission of evidence apparently so open to objection ? What
was the first enquiry made when the news of the crime was
published ? Why, what could have been the motive of the per-
petrator ? Surely no ordinary reasoning man would see in that
anything objectionable ; it is a question not only most natural,
but one the solution of which is most important for the purposes
of justice. Now, Mr. MacDevitt appeared to say that a motive
was not by that name included amongst the cases for exception
to the usual rule of exclusion, although he mentioned " intent "
as one of the exceptions. It is not necessary for the Court to
say, nor perhaps would it be very easy to point out the precise
c
B. V. Gbiffin
(No. 1).
Cockle, C.J.
34
QUEENSLAND JUSTICE OF THE PEACE.
R. I). Griffin
(No. 1).
Cockle C.J.
distinction between motive and intent, but I can see many cases
in which motive and intent have almost the same meaning. For
instance, a man is charged with shooting a man with intent to kill
him. What was his motive ? To kill this person ; why there is
his intent and motive. He shot at the man with intent to kill
him, and his motive in shooting was to kiU him. So that is
the possible distinction between the words motive and intent.
In the present case, assuming on the facts as stated, that there
was a robbery which had been committed prior to the commission
of the murder, can it be said that the result of the murder would
not be to render an enquiry into the circumstances of the robbery
more difficult, and that it would tend to baffle the researches of
justice into the commission of the robbery ? If such were the
result, would it, in the mind of the person who committed the
robbery, be an expected result of the murder ? The tribunal
'before whom the case is tried must say whether the person against
whom the evidence is offered would have sufficient intelUgence to
see that that might be the result, and, if they aimed at that
conclusion, he must be taken to have expected it. Did the
prisoner desire such a result ? It is not necessary for them to
say that he either expected it or desired it, but, if he expected it,
he might desire it, and that would constitute a possible motive,
which surely ought not to be excluded from a jury. It does not
foUow that the jury should be compelled to deem that motive
a sufficient one to induce them to act upon it and convict the
person accused. The Court has only to determine whether
the evidence should be admitted, and we think that aU motives
which might have actuated the accused person are fairly matter
to be laid before a jury, and it would be for them, in their own
common sense, to determine what weight to attach- to the cir-
cumstance. That, I think, being the case, the appeal must he
dismissed.
LutwyeheJ. LuTWYCHE J. : I agree -with the Chief Justice that the con-
viction must be affirmed. It appears to me that any act may he
given in evidence which would or might operate as a motive
upon the mind of any man. If it did so, it may be given in
evidence against the prisoner. The whole of the evidence which
was objected to seems to me to form part of the res gestae of the
case, and to be indivisibly connected one part with another, from
the very beginning, when the prisoner received the money from
the Chinamen at Clermont up to the commission of the robbery.
CRIMINAL REPORTS, 1860-1907.
35
Therefore that evidence contained facts which were brought
before a jury to show the motive for the commission of the
murder ; or, at any rate, facts which might have induced any other
man than the prisoner to commit the murder. When the robbery
was once committed we come to the circumstances attending
the murder, and we find that the bags were sealed at Power's
request by the prisoner. If another man, placed in the same
position as the prisoner, had committed the robbery, or was, or
might be, in fear of apprehension, surely then evidence of the same
facts might be given against the prisoner, not as furnishing an
adequate motive, but as furnishing some motive, for acting as
he did. The conviction must be affirmed.
Solicitor for prisoner : Rees Jones.
R. t). Gbiffin
(No. 1).
Lutwyohe J.
[1 S.C.R. 182.— Note.-
[In Banco.]
R. V. GRIFFIN (No. 2).
-29 Vic, Ko. 13, is repealed, see now s. 669 of Criminal Code,
to same effect as s. 51 of that Act.]
Mandamus — Circuit Court — Judge of Assize — Crown Case Reserved
— Amendment — Comment on Judge's summing up — Question
of fact — Criminal Practice Act of 1865 (29 Vic, No. 13),
ss. 48, 51.
Where a Judge of Assize has refused to state a point raised by counsel in a
Crown Case Reserved by him on other points, the proper time to bring the matter
before the Full Court is on the hearing of the Crown Case Reserved.
A comment made by the Judge in the course of summing up on the facts of
the case is not a pomt of law that can be reserved.
Qucere whether a mandamus will lie against a Jut^e of Assize.
Motion for a rule nisi for a. mandamus addressed to the Judge
of the Circuit Court, at Rockhampton, commanding him to state
a case for the consideration of the Full Court.
The prisoner Griffin had been convicted on a charge of murder,
and a Crown Case had been reserved, and judgment delivered
thereon as above (ante p. 33^.
All the other necessary facts appear in the argument of counsel
and the judgments of the learned Judge's.
1868.
15th May.
Cockle G.J.
Lutuiyche J.
MacDevitt and Griffith appeared to move for rule nisi.
36 QUEENSLAND JUSTICE OP THE PEACE.
^' (N^T™ Cockle C.J. ": The Judge of the last Circuit Court, at Rock-
— — hampton, has stated a case for the Full Court, and the Court,
after hearing it argued, has dismissed the appeal.
MacDevitt : The object of the present motion is to get the
learned Judge to state a case containing and embodying an
objection to his summing up.
Cockle C.J. : The Court had power under the original case, if
the matter had been suggested, to have remitted the case to the
learned Judge. That was the proper time to have applied. If
there was anything in the point the learned Judge would have
remembered it.
MacDevitt : I submit the learned Judge refused to embody the
objection in the special case submitted to the Full Court.
Cockle C.J. : Look at s. 51 of The Criminal Practice Act,
29 Vic, No. 13.
MacDevitt : I have read that section ; it says " The Judges,
when a case has been reserved for their opinion, shaU have power,
if they think fit, to cause the case or certificate to be sent back
for amendment, and thereupon the same shall be amended
accordingly, and judgment shall be delivered after it shall have
been amended." There could be no object in applying under that
section for an amendment of the special case, because the learned
Judge had already refused to embody the objection in it. Section
48 of the same Act, however, lays it down that " When any persoa
shall have been convicted of any treason, felony, or misdeamenour,
before any Court of Criminal Jurisdiction within the colony, the
Judge, or Chairman, or Justices of the Peace, before whom the
case shall have been tried, shall, on the application of counsel,
made during the trial, or without such application, in his or their
own discretion, reserve any question or questions of law which
shall have arisen on the trial for the consideration of the Judges of
the Supreme Court, and thereupon shall have authority to respite
execution of the judgment on such conviction, or postpone the
judgment until such question or questions shall have been con-
sidered and decided." The learned Judge, at the trial, refused to
state a special case to the Full Court embodying the objection
taken at the trial, as he alleged it did not come within that section,
as it was not a point of law but of fact. That is the reason why
no application was made to the Court to send back the special
CEIMINAL EEPOETS, 1860-1907. 37
-case to the learned Judge who tried it, to embody that objection ^- ^<^^^^^^^
in it. He cited Ex parte Inhabitants of Jarvin (9 Dowl. 120) ; — !_
Tapping, p. 235.
LuTWYCHE J. : If the apphcation had been made when the
special case was being argued, and the Chief Justice had thought
it was a point which ought to be embodied in that case, I would
have embodied it, whatever my own opinion might be.
MacDemtt : I regret that that course has not been pursued.
It was distinctly understood that the learned Judge who tried the
«ase had consulted with the Chief Justice, and had determined that
the only point he would submit to the Full Court was the one which
has already been decided.
LuTWYCHE J. : I spoke to the Chief Justice about it, but did
not consult with him. I acted upon my own responsibility.
MacDevitt : The Circuit Court at Rockhampton is an inferior
Court to the Supreme Court, and it was the duty of the Judge
to have reserved any point of law raised in the course of the trial
for the consideration of the Full Court.
LuTWYCHE J. : The Circuit Court at Rockhampton is a superior
Court of Record. The presiding Judge at the trial was only bound
to reserve points of law, and not matters of fact, for the consider-
ation of the Full Court, and it rested with him to determine whether
the points raised were matters of law or fact. It is clear no action
can lie against the Judge of a Superior Court, except for refusing
to sign a bUl of exceptions. I would like to be shown some
authority to show that a mandamus can lie against the Judge of
a Superior Court.
MacDevitt : By The Criminal Practice Act of 1865, the Judge
who tries cases in this colony is put upon the same footing as
Justices of Quarter Sessions in England. It cannot be contended
that a mandamus will not he to a Justice of Quarter Sessions, or
other judges of inferior Courts trying criminal cases, and why
should it not be addressed to the Judges of courts of oyer and
terminer.
Cockle C.J. : You could attach the Judge if that were so.
MacDevitt : I rely principally on the fact that His Honour,
Mr. Justice Lutwyche, in summing up, told the jury " If the
prisoner did not commit the murder, who did ? This is a question
88
QUEENSLAND JUSTICE OF THE PEACE.
B V. Griffin
(No. 2).
Cockle C.J.
which you must answer for yourselves before you can give a,
verdict upon your consciences in this case." When the jury had
retired I objected to that ruling, and asked the learned Judge to
reserve it.
LuTWYCHE J. : That is quite correct, and I told you to sit down ;
that you were making comments upon my observations to the jury
upon a question of fact. It was not the thing upon such a sad and
solemn occasion to have an altercation with counsel ; and having
some tenderness, perhaps, for the inexperience of the three gentle-
men who were engaged in defending the prisoner, I said I would
take a note of the objection and speak to the Chief Justice about
it. I did both.
MacDevitt : I submit that in cases in which a cUent's life and
liberty are at stake, his counsel are justified in taking advantage
of every chance which the facts of the case and the law permit.
Cockle C.J. : In the first place the Court is not satisfied that
a mandamus wiU lie to a Judge of Assize, and therefore we will be
spared the painful notoriety of having been the first Court probably
to mandamtts one of its own Judges. In the second place, I think
that the proper time to have asked Mr. Justice Lutwyche to have
placed an objection upon the case would have been when the
Judges sat as a Court of Criminal Appeal to hear the case reserved,
because then we might, if we had thought fit, have caused the case
or certificate to be sent back for amendment. I have very grave
doubts whether a mandarnvs will lie in any case, because the Court
of Criminal Appeal is formed upon the model of the Court of
Appeal in England, which consisted of the Lord Chief Baron, the
two Chief Justices, and several other Judges. It may be some
satisfaction to Mr. MacDevitt to know that the Court can see very
\\ ell that even if the point had been before us when the special
case was signed before the Court of Criminal Appeal, we would
scarcely have invited the learned Judge who presided at the trial
to amend his case. A Judge's summing up must not be regarded
as consisting of a set of separate sentences, but must be taken as
a ^\hole. The part which has been objected to in the present
case might, under one aspect, appear a very strong way of putting
the matter to the jury ; but yet, if the whole charge were con-
sidered, it might be the very best way of putting to the jury the
true point which they had to decide. It was not a point of law
that is wished to be reserved, but a criticism or comment on the
learned Judge's summing up. I think the motion ought to be
refused.
CKIMINAL REPORTS, 1860-1907.
39
LuTWYCHE J. : The motion is made too late. A suggestion
should have been made when the special case was being heard, for
that would have been the time to have inserted the proposed
amendment if the Court had thought such an amendment proper
and desirable. I also think the point which was said to be a point
of law was simply a comment made by the Judge in the course of
his summing up on the facts in the case. As the Chief Justice
has said, we must not look at isolated sentences, but at the whole
of the summing up, in order to see the sense in which the words
were used. They were used by me to convey to the jury my strong
impression that the prisoner was guilty. It was only another form
of saying " Nobody but the prisoner could have committed the
deed."
[His Honour then read a considerable portion of his summing up
from the Northern Argus, which contained, he said, the best report
of his charge to the jury,]
I very much regret that the point has been brought before the
Court, for it is very irregular. When I was in New South Wales
the practice of relying upon a Judge's summing up prevailed a
good deal too much in the Supreme Court. So far as Ues in my
power, I will take care to check that practice up here. 1 think the.
motion must be dismissed.
Solicitor for prisoner ; Rees Jones.
E. V. Gkiffin
(No. 2);
Lutwyche J.
[In Banco.]
R. V. PEARSON.
[2 S,C.R. 21,]
Criminal Law — Venire de novo — Affidavit of juror — New trial
refused.
On an application for a writ of venire facias de novo, on the ground of irregu-
larities in connection with the dehberationa of the jury on a criminal trial, Jield,
that an affidavit by one of the jurymen as to the actions of the jury after their
retirement from the Court could not be read upon such an application.
*B. V. Murphy (7 N.S.W. S.C.R. 24) doubted.
Application to make absolute a rule nisi for a writ of venire
facias de novo, and for a writ of certiorari.
George Pearson was arraigned before His Honour Judge Innes
and a common jury at Maryborough on the 7th August, 1868, on a
1868.
27th November.
Cockle C.J.
Lutwyche J,
*TbJB decision was reversed by the Privy Council (L.R. 2 P.O. 535).
40
QUEENSLAND JUSTICE OF THE PEACE.
R. V. Pearson, charge of feloniously stealing two auriferous nuggets, valued at
£64, the property of George Smith, Pearson being a bailee.
The prisoner was found guilty, and sentenced to eighteen
months' imprisonment with hard labour in the Brisbane Gaol.
On the termination of the case, the jury were locked up in the
public Courthouse, and given in charge to the baihff of the Court.
The jury-room was occupied by another jury. Howard, one of
the jurymen, had siace stated that while the jury were locked
up ia the Courthouse, and considering their verdict, the police
entered the Courthouse with the prisoner Pearson and other
prisoners, and remained there during a portion of the time the
jury were deliberating. Upon the reopening of the Court, the
jury complained to the Judge of the intrusion of the police.
While the jury were locked up, the depositions, the notes of the
Crown Prosecutor and of the counsel for the prisoner, Roscoe's
Criminal Evidence, and other legal works, were in the Court,
and the jury had access to and read some of them.
Blake and Handy, for the prisoner, cited R. v. Murphy (7
N.S.W.R. 24), then under appeal to the Privy Council, Straker
V. Graham (4 M. & W. 721), Burgess v. Langley (1 D. & L. 21),
Harvey v. Hewitt (8 D.P.C. 598), B. v. Fowler (4 B. & Aid. 273),
B. V. Bertrand (L.R. 1 P.C. 520), Gould v. Oliver (2 M. & G. 288),
and read affidavits in corroboration of the facts.
Cockle C.J. Cockle C.J. : This appUcation must be refused, on the ground
that the evidence is technically insufficient and inadmissible. The
presumption to be drawn from the statement that notes and books
were lying on the Courthouse table is too faint to induce the
Court to grant the rule.
Lutwyche J. LuTWYCHB J. : It is quite clear from the authorities that the
affidavit of a juryman cannot be received as to what passed while
the jury were locked up in a private room, and that the statement
of a juror to another person of what passed in that private room
cannot be accepted. There is nothing, therefore, for the Court
to go upon. I consider this case is distinguishable from that
of B. V. Murphy. I do not see anything in the case to infer a
miscarriage of justice. I am not at all prepared to go the length
that the Full Court in New South Wales has gone in B. v. Murphy,
simply because the jury read the reports of the trial, for they read
them only during the first three days, and if they had fornied
any erroneous impression of the evidence, they could have been
corrected by the Judge in summing up.
Bule refused.
CBIMINAL EEPOETS, 1860-1907.
41
[In Banco ]
R. V. WILKIE.
[2 S.C.R. 33.— Note.— 29 Vic, No. 6, is repealed. See s. 398 v. of Criminal Code.
As to receiving stolen property, see now s. 433 of Criminal Code.]
Criminal Law — Embezzlement — Larceny Act of 1865 (29 Vic,
A'O. 6), ss. 73, 75, 76, 96 — Person in service of the Crown.
The word " fraudulently," in s. 75 of 29 Vic, No. 6, is to be applied to the
word " embezzle," which precedes it in the section, as well as to the words
" apply and dispose of" which follow.
Where a servant of the Crown has received from the Treasury moneys payable
to other persons, and there is no evidence that he received them by virtue of his
employment, he cannot be convicted of embezzlement of those moneys under
.8. 75 of the Larceny Act.
Crown Case Reserved by Lutwyche J.
The prisoner was indicted on an information under s. 75 of the
Larceny Act of 1865, charging him with three separate offences of
embezzlement and stealing, and a general verdict of guilty was
xeturned. The facts appear in the judgment. It was submitted
that the case for the Crown had failed in that the moneys men-
tioned in the information were the property of the person to whom
they were payable, and not of Her Majesty ; that ttere was no
■evidence of the prisoner having received the said moneys or having
■embezzled them ; that there was no evidence of the prisoner
having received the moneys by virtue of his employment ; that
there was no refusal by the prisoner to account for the moneys,
and that it, in fact, having been shown that the moneys had been
paid over, there was in law no embezzlement and no fraudulent
intention on the part of the prisoner. The learned Judge refused
to so direct the jury, but reserved the objections for the Full
•Court.
The prisoner was convicted and sentenced to three years penal
servitude.
Blake Q.C. and Grfflth, for the prisoner, referred to R. v. Moah
(Dears 626 ; 25 L.J., M.C., 66). The persons, to whom payments
were made, might have received them at the Treasury themselves.
The money must be in transit to the employer. R. v. Hockings
(1 Den. 584 ; 2 Russell, 449-50) ; R. v. Gill (Dears. 289) ; R. v.
Smith (R. & R. 516). • The receipt from the bank is receipt from
the Crown. R. v. Gorbutt (Dears & B. 166) ; R. v. Hodgson (3
■C. & P. 422) ; R. v. Evan Owen Jones (7 C. & P. 833) ; R. v.
Williams (7 C. & P. 338).
1869.
9th, lOlh
September.
Cockle C.J.
Lutwyche J.
42
QUEENSLAND JUSTICE OP THE PEACE.
R. V. WiLKiE. Pring Q.C., for the Crown : Section 75, refers as much to money
coming from the Treasury as to money going from the Treasury
entrusted to him by virtue of his employment.
Lutwyche J. LtrTWYCHE J. : I have now no hesitation in coming to the con-
clusion that the conviction was erroneous. I certainly thought,
at the trial, that the words of s. 73 of the Larceny Act, and those
of s. 75 so far as related to the offence of embezzlement, being,
different in phraseology, the Legislature might have intended
to apply a more restricted meaning than was formerly applied
to the word embezzlement. I am sorry that I had no oppor-
tunity at the trial of fortifjdng my judgment by a reference to
any of those cases just cited, for I was only referred to R. v. Moah.
I certainly think now that the word " embezzle " means fraudu-
lent and felonious embezzlement. I am more lead to that con-
clusion by a more careful consideration of the terms of s. 75,
I take it, therefore, that the Legislature meant to apply the
word " fraudulent " to the word embezzle, as well as to the
words " apply or dispose of ; " and the context seems to strengthea
that conclusion. Another clause of the Statute (s. 96) has been
pointed out to me by the Chief Justice — that as to the receiving
of stolen goods. The words are :
" Whosoever shall receive any chattel, money, valuable security or other
property whatsoever, the stealing, taking, extorting, obtaining, embezzling or
otherwise disposing whereof shall amount to a felony either at common law or
by virtue of this Act, knowing the same to have been feloniously taken, stolen,
shall be guilty of felony, and may be indicted an^ convicted as-
an accessory after the fact or for a substantive felony, and in the latter case,
whether the principal felon shall or shall not have been previously convicted or
shall or shall not be answerable to justice, and every such receiver howsoever
convicted shall be liable, at the discretion of the Court, to be kept in penal
servitude for any term not exceeding fourteen years, etc."
It cannot be intended that a simple receipt of any property, which
has been stolen, will make a man liable to be indicted as a receiver,
for, if so, a constable who takes stolen goods into his possession
may be indicted under s. 96. We must construe enactments
according to the meaning of terms which have obtained in the
law a certain definite meaning ; and I think I have been wrong
in the necessarily hasty view I took on the occasion of the trial.
I should have been glad to have received more assistance than
I did ; but, of course, a judge has to do the best he can at the
time. I was not freed from responsibility, if I did not get the
amount of assistance which I might fairly expect from the Bar,
CRIMINAL EEPOETS, 1860-1907.
43
In the Larceny Act a distinction between embezzlement and
larceny is carefuUy drawn. There is a distinct section (s. 75)
with reference to the offence of larceny by persons in the Queens-
land Civil Service and the PoUce, and another clause which
relates to embezzlement, and to a fraudulent application or
distribution of money ; and perhaps if the words " fraudulent
appUcation " had been followed in the information in this case,
the evidence might have supported it. But there would still
have remained the question of fraud, which I was asked to put
to the jury, and'thought it unnecessary to do so. I told the
jury it was quite sufficient, if they thought there had been a
wilful misappropriation of public money by the prisoner, and
declined to put that question to them. The main question in
this case turned upon that of embezzlement, and I certainly
think there has been no evidence of embezzlement, in the meaning
of that term that has been laid down, to go to the jury. The
prisoner received money from, the Treasury, representing the
Queen. He did not, as was the case with the prisoner whom I
tried at Ipswich in April last, intercept money on its way to the
Treasury ; but he received it from the Treasury, and, therefore,
if other facts would have supported the charge, he might have been
found guUty of larceny, if my attention had been called to the
fact that the evidence would support such charge. Had my
attention been so called, I might then have directed the jury
to find the prisoner guilty of larceny, not embezzlement. I
cannot complain that I was not told the offence, if anything,
amounted to larceny. I ought to have seen that for myself,
but I did not. The jury having found a general verdict of
guilty, the conviction must be quashed according to the authority
of R. V. Gorbutt (supra), even if the evidence would have sup-
ported a charge of larceny. Under all the circumsances, I am
clearly of opinion that the conviction was erroneous, and ought to
be quashed.
B. u. WiLKIE.
Lutwyche J.
Cockle C.J. : I concur.
Cockle C.J.
Conviction quashed.
44 QUEENSLAND JUSTICE OF THE PEACE.
R. V. ARCHIBALD.
[2 S.C.R. 47.— Note.— Footnote should read See 58 Vic., No. 23, s. 10 (Criminal
Law Amendment Act of 1894). As to confessions see also R. v. Many Many
(6 Q.L.J. 224, post) and MacNamara v. Edwards, Ex parte Edwards (1907,
S.R.Q. 9, post.]
1869. Crown Case Reserved — Voluntary confession — Evidence — 0§er of
7th December. j /-r j ■
'pardon — Caution .
1 iitiaiche J ^- '^^° ^^^ ^^^"^ arrested as an accessory before the fact to a murder was
informed by the lock-up keeper that there was a reward offered and a free
pardon, to any one but the murderer, to any person giving information which
would lead to the apprehension of the miirderer. A. said he had intended to
teU the Police Inspector what he knew on his arrest, and the lock-up keeper
repUed that he should have done so, as it would have been better for himself.
A. then, at his own request, saw the Police Inspector, and said he wished to
make a statement. The inspector then took A. before a magistrate, and both
the inspector and the magistrate warned A. that any statement made by liiin
might be given in evidence against him. A. then made a statement, and when
the same was about half completed the magistrate told him that the evidence
was not being received as Queen's Evidence. A. completed the statement.
Hdd that the statement was not induced by the o£Eer of reward or pardon,
and being voluntary was rightly admitted against the prisoner.*
R. V. Rosier (Phillips Ev., 414), approved.
R. V. BlacHbum (6 Cox C.C. 333) distinguished.
Crown Case Reserved by Mr. Justice Lutwyche, on the trial
of Alexander Archibald at the Rockhampton Circuit Court, in
October last, for being an accessory before the fact to the murder
of Patrick Halligan, by George Palmer and John Williams.
Pring A.G. And Griffith, for the Crown.
Blake Q.C. for the prisoner.
The case stated was as follows : — " In the course of the trial,
the Attorney-General tendered, on behalf of the Crown, a state-
ment made by the prisoner in the presence of a magistrate of
the territory, which statement was taken down in writing in the
presence of the magistrate and the prisoner, and was afterwards
read over to the prisoner and signed by him. An objection was
raised to the admissibility of this document, on the ground
that it was made after a promise had been given to the prisoner,
and while he was under arrest, but I over-ruled the objection,
and allowed the statement to go to a jury, reserving, at the
request of the prisoner's advocate, for the opinion of the Supreme
*See 58 Vic, No. 2, s. 10.
CRIMINAL REPORTS, 1860-1907. 45
Court, this question of law : Was the statement properly received ^- "• Arohibald.
in evidence or not ? On the night of the 12th May last, at a
pubUc meeting of the inhabitants of Rockhampton, held at the
Union Hotel Theatre, the Police Magistrate of Rockhampton
received a telegram purporting to have been despatched by the
Colonial Secretary, in which a reward of £300 was offered for any
information that would lead to the apprehension or conviction of
the murderer or murderers of Patrick Halligan, and a free pardon
to the accompUce not actually the murderer. It did not appear
that the prisoner, who was arrested the same night about 9 p.m.,
at the Lean Creek Hotel, three miles from Rockhampton, was
at the meeting ; but, after his arrest, and while he was in the
lock-up, he was told by the lock-up keeper that there was a
reward offered and a free pardon to any person not actually the
murderer. The prisoner said that he had a mind to tell Mr.
EUiott (Sub-inspector of PoUce) when he was arrested, and the
lock-up keeper replied that he should have done so, as it would
have been better for himself. The prisoner then said that he
would tell Mr. EUiott all that he knew about it. The prisoner
soon afterwards saw Mr. Elliott and said, " I was coming in to
tell you about it, but I was waiting until the meeting should be
over, and a reward offered, as I wished you to get the reward."
The prisoner next told Mr. Elliott that he wished to make a
statement. Mr. Elliott took the prisoner before Mr. Murray,
the Police Magistrate of Springsure, and Chief Inspector of PoUce
of the Northern District, and said to the prisoner : " Do you
know that he is a magistrate ? Do you wish to make a state-
ment ? " The prisoner said that he knew Mr. Murray, and that
he did wish to make a statement. Mr. ElUott said, "Whatever
you say will be taken down in writing, and given in evidence
against you." The prisoner said, " All right," or " Oh ! very
well," and Mr. Murray then repeated the caution, saying, " Now,
Archibald, be cautious what you say, as it will be taken down in
writing and may be used against you on your trial." The
prisoner said, " All right, I understand what I am about." Mr.
Murray, in giving his evidence, deposed that when the statement
was about half completed he told the prisoner to bear in mind
that the statement was not being accepted as Queen's Evidence,
and that the Judge would have to decide that question ; but
the Sergeant of the Police, who was engaged in reducing the
prisoner's statement into writing, deposed that he did not hear
Mr. Murray say anything about Queen's Evidence, and that it
46 QUEENSLAND JUSTICE OP THE PEACE.
E. V. Aechiealp. could not have been said without his hearing it. Nothing was
said either by or to the prisoner after he had been brought before
Mr. Murray about a pardon or a reward. The statement which
was given in evidence contained admissions tending strongly
to show the guilt of the prisoner, and he was found guilty and
sentenced to death, but remains in Rockhampton gaol pending
the decision of the Supreme Court on the question of law above
stated."' !.
Blake contended that the mere knowledge by the prisoner that
a reward and free pardon had been offered by the Government
for the discovery of any person, who had not actually committed
the murder, would not be sufficient to render his confession
inadmissible ; but if it was shown, in addition, that the knowledge
had operated on the prisoner's mind in making the confession,
then it would be rendered inadmissible : R. v. Boswell (C. & M.
684, and 3 Russell on Crimes, 373) ; R. v. Blackburn and others
(6 Cox 333). In Archibald's case it was shown that he had the
knowledge, and that it had operated on his mind, and the caution
he had received was immaterial. The prisoner may have said
to himself : " If I don't make this confession I cannot benefit
from it ; I will run the chance of it being used against me."
The caution might not have removed the state of mind under
which Archibald was induced to make the statement. He might
not have beUeved the caution. He was told of the proclamation,
and immediately expressed the wish to make a confession. He
was in the very position of a person to whom the proclamation
was directed, being cognizant of the crime, but not having com-
mitted it. Would anyone say that the proclamation had not
operated very strongly on the prisoner's mind.
[Ltjtwychb J. : I have no doubt it would. I hope that in all
future proclamations accessories before the fact will be expressly
excepted from the offer of pardon or reward.]
It was evident that the caution was not sufficient to remove
the impression from the prisoner's mind produced by the
proclamation, and it was reasonable to say that the making of
the confession was the very thing that would have entitled him
to the pardon offered. If he had said one word about his state-
ment being secured as evidence he must have been discharged,
as his case would then be that of B. v. Blackburn. There was,
however, no substantial difference between the two. The question
was : " Was the evidence purely voluntary ? " It was not
CRIMINAL REPORTS, 1860-1907. 47
purely voluntary if there had been anything to influence the ^- "■ A.rchibald.
prisoner, such as the proclamation in this case.
Pring A.G., for the Crown : The case of R. v. Boswell had been
fully distinguished in the subsequent case of jR. v. Dinghy (1 C.
& K. 637), which was particularly applicable to the present case.
In R. V. Dingley a caution had been given, but not in R. v. Boswell,
and in the former the confession was held admissible. In Archi-
bald's case he was twice told that his statement would be used
against him, and no promise whatever was made to him, and the
caution was given not by a person not having authority, but by a
justice of the peace. In Boswell' s Case the statement was ren-
dered inadmissible on the express ground that it was made on an
inducement held out by an authorised person. The present
ease differed entirely from that. Not only was no inducement
held out by an authorised person, but there was evidence that
he was distinctly cautioned by an authorised person, not only
once, but twice, and told there was no hope that his statement
■would be secured as Queen's evidence. It would not do to say
that the mere knowledge of a reward having been offered oper-
ated to such an extent on the prisoner's mind that the impression
could not have been got rid of by a twice-repeated caution. The
prisoner did not intimate at the time that he made the statement
that the offer of pardon and reward had operated on his mind
with respect to his own position ; but he told Mr. Elliott that
he made the statement in order to enable him, Elliott, to get the
reward. In the case of R. v. Clewes (4 C. & P. 221), an absolute
inducement had been given, a hope of pardon held out ; but the
hope was destroyed, and the confession held to be admissible.
If- the learned counsel for the prisoner was right in his argument,
the mere knowledge of a free pardon having been offered must,
per se, be held to operate on a prisoner's mind, notwithstanding
repeated cautioning. In Blackburn's Case a caution was given,
but a distinction between that and Archibald's was : that in the
former there had been something more than a simple knowledge
of pardon offered on the part of the prisoner. It was shown
that he had apparently a notion that he would be received as
Queen's evidence. There had been referred to at the trial the
cases of R. v. Rosier and R. v. Lingate (Phillips on Evidence, 414) .
These two cases went to show that a caution given subsequently
to an offer of reward or pardon was sufficient to efface such offer.
In the case of R. v. Howes (3 Russell, 384), the prisoner, previous
to making a statement, was told that it might do him good ;
48 QUEENSLAND JUSTICE OF THE PEACE.
E. V. Aeohibald. i)ut it Tffg^s subsequently held to be admissible against him. Coun-
sel also referred to R. v. Berrigan (3 Russell 376).
Blake, in reply, contended that Archibald's case was entirely
different from any cited by his learned friend. In those oases,
out of the three in which an inducement was held out, in two it
was held out by constables, and in the third, by a coroner, and it
was afterwards negatived by a magistrate, when the Court held
that the caution of the latter was sufficient to efface any impression
received by the prisoner from what the coroner said. It was not
to be supposed that Archibald would necessarily place much
reliance on the assertion of Mr. Murray or Mr. EUiott that the
confession would be used against him. They were not in a
position to say whether or not it would have been used as evidence
against the prisoner. The proclamation was issued by the
Governor of the Colony through the Government, and Mr. Murray
and Mr. Elliott could not interfere.
Cockle C.J. Cockle C.J. : Blackburn's case certainly goes a very great way.
It appears that the prisoner was told, before he would say any-
thing, that his statement would be used against him. That
statement was tendered as evidence to the presiding judge, Mr.
Justice Talfourd, and rejected by him, after consultation by Mr.
Justice Williams, on the ground that it appeared that the prisoner,
in making it, had a notion that he would be received as Queen's
evidence. We should, of course, give every consideration to cases
decided by eminent judges, but we are also bound to exercise
judgment of our own in the matter. It must be remembered
that, in these mixed cases of law and fact, it is almost impossible
to lay down any rule that can be applied with certainty and
definitely in all cases. We must, therefore, look in this case
to the words used, and to the circumstances of the case, as dis-
closed in the learned judge's report. The prisoner was indicted as
an accessory before the fact to a murder alleged to have been
comnjitted by two other persons. He was apprehended, and,
when in custody, the lock-up keeper told him that a reward and
free pardon had been offered to any person not actually the
murderer. We ought not to interpret this offer as being addressed
so directly to the prisoner as to lead him to think that it was a
special offer to him, for at the time the number of persons who
had been engaged in the transaction was uncertain. On being
informed of the offer, prisoner said that he had a mind to tell
Mr. Elliott when he was arrested, and the lock-up keeper rep
CEIMINAL REPORTS, 1860-1907. ^ 49
that he should have done so, as it would have been better for him- ^- "• Archibald.
self. We may regard the alleged inducement in a double point Cookie C.J.
of view — first, as an inducement arising from the offer of reward
and pardon, and second, as an inducement from the lock-up
keeper himself. These words of the lock-up keeper may be
interpreted as meaning that it would have been better for the
prisoner had he told sooner, or as a merely formal continuation of
the conversation, or as an expression of opinion that he was too
late in making his statement. On seeing Mr. Elliott, the prisoner's
words seemed to be rather an excuse for making his statement so
late, and it is possible that the interpretation put by him on the
lock-up keeper's words was, that it was too late. If this is to
be regarded as an inducement of either kind, I think if the
prisoner had then and there told aU he had to tell to Mr. Elhott,
that his statement ought not to have been admitted in evidence,
and my learned brother has already intimated the same opinion.
But he did not then and there make a statement to EUiott.
EUiott took him at once before a magistrate, and, on his saying
that he wished to make a statement, told him that whatever he
said would be taken down in writing, and given in evidence
against him. The learned counsel for the prisoner seemed
to have abandoned the ground that the prisoner confessed on
the strength of any inducement held out by the lock-up keeper,
but argued on the ground of the inducement of the reward and
pardon. I shall examine the matter, therefore, with reference
to that ground. I think there can be no doubt that, if the prisoner
made this statement under the reasonable belief that in doing so,
he was either making it as a witness for the Crown, or doing
something preUminary to becoming a witness for the Crown,
then, on the strength of the recorded cases and general ground
of jurisprudence and public policy, this statement should be
excluded ; because, if once the notion get abroad that offers
by the Government of reward and pardon are to be used as snares
for admissions and confessions, they will fail as an inducement
for confessions. We must, therefore, look to whether the
prisoner had reasonable grounds for beheving that he was acting
in the capacity of a witness for the Crown. To say that he
acted under the influence of hope or fear would not, I think,
cause the exclusion of this statement ; because most statements
made in criminal cases are made under such influences. They
were to consider whether Archibald made the statement under a
reasonable behef that he did so as a witness, or preparatory to
50
QUEENSLAND JUSTICE OF THE PEACE.
E. V. Abchibald.
Cockle C.J.
Lutwyche J.
becoming so. There Avas nothing in the demeanour of Elliott
calculated to inspire the prisoner with such a behef. He does
not invite him to a confession, but takes him before a
magistrate, puts questions to him which do not imply a very
inviting demeanour, and tells him that what he says will be
taken down and used as evidence against him. These words
were not consistent with the making an impression that Archibald
was to be treated as a witness. The words used by Murray
were stronger still. He said to Archibald, " Be cautious what
you say, as it will be taken down in writing, and may be used
against you at your trial." Witnesses are not generally placed
on their trial, and Archibald's object in making the confession
was to avoid being tried. One would think that these words
would have been sufficient to raise grave doubts in Archibald's
mind as to whether when making this statement, he did so as a
witness. I think, therefore, we must take it that there is sufficient
evidence to show that any reasonable impression of T^chibald
that he was to be taken as a witness must have been effaced from
his mind. In the case of R. v. Rosier, the prisoner having been
told that it would be better to confess, asked a magistrate if it
would be better, and he replied that he could not say that it
would. The subsequent confession was admitted. What the
magistrate said there amounted to this " what you say, if you
say anything, may endanger you." In that case the judges were
unanimous in holding that the confession was admissible in evi-
dence, on the ground that the magistrate's answer was sufficient
to efface any impression that the constable might have raised.
The case of R. v. Lingate is to the same effect. For these reasons
I am of opinion that Archibald's statement must be deemed to
have been voluntary, that it was properly admitted in evidence,
and consequently that the conviction must be confirmed.
Ltjtwyche J. : We have to consider how far the promise of
pardon operated on the mind of Archibald, so as to induce him to
make the statement. In the first place, it is to be observed that
it does not appear he was present at the meeting when the tele-
gram, purporting to be from the Colonial Secretary, was read,
and that he received information of that fact from the lock-up
keeper, a person who might have been telling him, for purposes
of his own, an untrue story. If the statement had been made on
such an untrue story it would have, consequently, been inad-
missible. But, as the case stands, we must take it that, though
the promise was made by the Colonial Secretary, the prisoner had
CRIMINAL EEP0RT8, 1860-1907. 51
no better knowledge of the fact than that obtained from the Ups ^- '•'• ■^ch^b^I'''-
of a lock-up keeper, a person in a very inferior position. Then, Lutwyche J.
how far does this promise operate on the prisoner's mind ? When
EUiott goes in and sees him, he says : " I was coming in to tell
you about it, but I was waiting until the meeting would be over,
and a reward offered, as I wished you to get it." Not a word
there about a pardon. So far, therefore, there is no affirmative
evidence of the operation of the promise of pardon on the prisoner's
mind. Being taken by Mr. Elliott before Mr. Murray, he is at once
told by the former : " Whatever you say will be taken down
in writing and given in evidence against you." Now, here was
a person, in a superior position to the lock-up keeper, who gives
him that direct warning, and that warning was repeated by Mr.
Murray in still more precise terms, as follows : — "Now, Archi-
bald, be cautious what you say, as it will be taken down in
writing, and may be used against you at your trial." That, to
my mind, would have been quite sufficient to have effaced any
impression, if any such had been created, that he could obtain a
pardon from the Crown. But, further, he was distinctly informed
before the statement was completed, when it was half completed,
that it was not being accepted as Queen's evidence, and that
the judge would have to decide that question. There was affirm-
ative testimony that he was so informed, and, although the
constable who took down the prisoner's statement says that he
did not hear it, and that, if said, he must have heard it, that
proves little, for he may not have recollected that the words
were used, or may not have gathered their purport. Unless we
are to go to the length of saying that, after a reward has been
offered by the Crown, no caution, however strong and precise in
its terms, would be sufficient to prevent a prisoner's statement
being used in evidence against him, I think we must hold that,
in this case, the statement was properly received. Blackburn's
case certainly goes a great way, but, the distinction is that there
the judges came to the conclusion that there was affirmative
evidence of an impression on the prisoner's mind that he would
be received as Queen's evidence. Here there is no such affirm
ative evidence, but it appears that such an idea was distinctly
negatived. I prefer to rest my judgment on Rosiefs case, which
was a decision of a Full Court, and appears to me to be most
consistent with true principles. I think the conviction should
be affirmed.
Conviction affirmed.
52
QUEENSLAND JUSTICE OF THE PEACE.
1869.
1 7th December.
1870.
I6tU March.
Cockle a.J.
Lutwyche J.
[In Banco].
GOLDSMITH v. ROCHE.
[2 S.C.K. 55.]
Cattle Stealing Prevention Act (17 Vic, No. 3), s. 3— Detention of
a horse — Absence of stealing — Limitation — Practice — Supple-
menting depositions by affidavits.
A prohibition was granted to restrain further proceedings on an order for the
restitution of a horse, under s. 3 of 17 Vic, No. 3, no evidence having been
adduced that the horse was stolen, or stolen within twelve months of the com-
mencement of the proceedings.
Affidavits are not admissible to supplement the depositions as to what took
place before justices.
Quaere, whether s. 3 of 17 Vic, No. 3, is a penal section.
Motion to make absolute a rule nisi for a prohibition restrain-
ing G. W. EUott, P.M., H. T. Plews, and J. Wonderley, JJ.P.,
from further proceeding on an order, dated 19th November, 1869,
whereby Frederick WiUiam Roche was ordered to deliver up a
horse to Edward Goldsmith, who had laid an information under
s. 3 of The Cattle Stealing Prevention Act of 1853.
On 7th September, 1869, Roche appeared at the Police Court,
Dalby, to answer a complaint preferred against him by Goldsmith
for the unlawful detention of a horse, alleged to be the property
of the latter, when the summons was dismissed. On 16th
November Roche was served with another summons, issued on
the information of Goldsmith, for the restitution to him by Roche
of the same horse, under s. 3 of 17 Vic, No. 3, and alleged that
the horse in dispute had been stolen from Highfields, and found
in Roche's possession, but did not charge Roche or any other
person with the stealing. From the depositions it appeared that
the horse in dispute was claimed by Roche and Goldsmith. The
latter deposed to having purchased it in 1867 from one Ballard,
Roche was not examined ; but one Wilkie deposed that he had
bred the horse, and sold him to one Robinson, who subsequently
delivered the horse to him for Roche, and that Robinson had
given up the horse in consequence of being unable to meet a debt
due by him to Roche. There was no evidence that the horse had
been stolen at any time, though there was evidence of a belief
that it had been stolen.-
The grounds for the rule nisi were : — (1) That it appeared by
the evidence that the defendant set up a bona fide claim of title.
(2) That the title to property being in question, the justices had
CRIMINAL REPORTS, 1860-1907.
53
no jurisdiction. (3) That the justices wrongfully refused to hear
«vidence of a previous adjudication in respect of the same subject
matter. (4) That there was no evidence of the stealing of the
horse, the subject matter of the information. (5) That there was
no evidence of the stealing of the horse within twelve months
before the date of the information. (6) That there was no evi-
dence of the stealing of the horse within twelve months before the
•date of the information, or of the commencement of the proceed-
ings, or of the order. (7) That the conviction or order was against
the evidence.
When the rule nisi was granted, leave was given to file additional
affidavits by Mr. Ocock, and other affidavits, provided they be filed
iour clear weeks before the day of return, including copies of
preceedings in both cases.
Affidavits were read, including those of Messrs. EHott and
Wonderley, who denied that any evidence of the previous case
heard at Dalby was tendered by Roche.
Griffith moved the rule absolute.
Handy, for the respondent, showed cause.
The following authorities were cited : — R. v. Dodson (9 Ad. &
Ell. 704) ; Ex parte Rusden ; Ex parte Preston (Wilkinson's
Magistrate, pp. 97, 98) ; Ex parte Ivill [2 N.S.W. S.C.R. (L.), 92.]
Cockle C.J. : It does not appear on the depositions that there
was satisfactory evidence before the justices that the horse was
stolen, and stolen within a year of the commencement of the
preceedings, and on that ground alone the prohibition must be
granted. It may be there was more evidence than appears on
the face of the depositions, but it would be dangerous to allow
depositions to be supplemented by affidavits of what took place
before magistrates. The depositions alone must be our source of
knowledge of what took place before the magistrates. With
regard to the subject of a claim of right, we are not satisfied that
the section under which ihe information was laid is a penal one.
Moreover, satisfied or not, there being nothing in the depositions
to show that this claim was tendered," the question raised is utterly
immaterial, except so far as regards costs. I think this rule
should be made absolute, but without costs.
LuTWYCHE J. concurred.
Solicitors for Applicant : Wilson and Bunion.
Solicitor for Respondent : Doyle, agent for Hamilton.
Goldsmith v.
BOGHE.
Cockle C.J.
Lutwyehe J
Lutwyche J.
54 QUEENSLAND JUSTICE OF THE PEACE.
[In Banco].
R. V. CASTLES & GRIFFITHS.
[2 S.C.R. 147.— Note.— 29 Vic, No. 6, is repealed, see now ss. 398 (111.) and 402 of
Criminal Code. As to joinder of counts, see now ss. 567, 568 ol Criminal
Code. As to quashing indictment see now ss. 571 and 596 ol Criminal Code.}
1871. Criminal Law — Information— Joinder of several felonies in different
12th May. counts against two 'prisoners in one information — Larceny
CockUG.J. Act of 1865 (29 Fie, No. 6), ss. 10, 11.
In an infornuition against two prisoners a, coiint for feloniously stealing a cow
had been joined with counts for feloniously killing a cow, with intent to steal
the carcase and hide, and one prisoner was found guilty on the second count, but
not guilty on the first and third, and the other prisoner was found guilty on the
first, but not guilty on the second and third.
The conviction was aflGrmed, the right being reserved for the prisoners to sue
out a writ of error.
An application should have been made to quash the information.
Ceown Case Reseeved by the Judge of the MetropoUtan
District Court.
James Castles and Spencer Griffiths were tried on 22nd May at
Warwick on an information containing three counts (1) that on the
13th May last they did feloniously steal, take, and drive away one
cow, the property of Frank Buttner ; (2) that they did feloniously
kiU the cow with intent to steal the carcase ; (3) that they did
feloniously kill the cow with intent to steal the hide. The
prisoners pleaded not guilty, and were defended by their attorney.
There was ample evidence to go to the jury against the prisoner
Griffiths on the first, second, and third counts, and also against
Castles on the second and third counts ; the judge ruling there
was no evidence against him on the first. It appeared from
the evidence that the cow in question was in possession of the
bailee of the owner on 11th May, and it was found in the stock-
yard of the prisoner early in the morning of 13th ; and the evidence
adduced by the prisoner as to how it came into his possession
was found by the jury to be false. About sunrise on the morning
of the 13th the prisoners killed the cow, and before skinning
and cutting up the carcase they were interrupted by the police.
No objection was taken by the prisoner's attorney that they
were charged in the first count with one felony, and in the second
and third with another felony ; nor was any application made
that the Crown Prosecutor should elect to proceed on one or other
of the counts. The jury first brought in a verdict of not guilty
CRIMINAL EEPORTS, 1860-1907.
55
against Castles on the first count, and guilty on the second and R- «^ Castles and
lTR.Tli''F'TTHS
third, and guilty against Griffiths on all counts. The judge then
explained to the jury that there was no necessity to convict
the prisoners on more than one count, and a verdict was then
returned against Castles of " guilty " on the second, and " not
guilty " on the first and third counts ; and of " guilty " against
Grifiiths on the first, and " not guilty " on the second and thifd
counts. No motion was made in arrest of judgment, and each
prisoner was sentenced to three years' penal servitude. Before
passing sentence, the Judge entertained some doubt, whether
from the evidence adduced, the count for feloniously steaUng
should have been joined with those for feloniously kilfing with
intent to steal the carcase and hide. He also entertained a
doubt, whether on the information, one prisoner could be found
guilty on the first count, and not guilty on the second and third,
and the other could be found guilty on the second, and not
guilty on the first and third. The prisoners were undergoing
sentence, and the opinion of the Court was requested on the
questions (1) whether on the information the prisoners, or either
of them, ought to have been convicted, and (2) whether the
record was correct.
Bramston A.G., for the Crown, in support of the conviction
it was competent to join several descriptions of offences in the
same indictment, and therefore on the first point the conviction
must be maintained. R. v. Heywood, 33 L.J. (M.C.) 133 ; R.
V. Moah, Dears 626 ; R. v. Trueman, 8 C. & P. 727 ; R. v. Mitchell,
3 Cox C.C. 93. [LuTWYCHE J. mentioned R. v. Hinley, 2 M. & R.
524 ; R. V. Kingston, 8 East 41 ; 9 R.R. 373 ; Young v. R., 3 T.R.
98, 106.] On the second point the counts being joined, and the
transactions which created the offence charged against each
prisoner being the same, it was competent to find them guilty
on different counts. R. v. Butterworth, R. & R. 520 ; R. v.
Hempstead, R. & R. 344 ; R. v. Pulham, 9 C. & P. 280 ; R. v.
Hayes, 2 M. & R. 155 ; 2 Hawkins, P.C. 622.
Cockle C.J. : An appUcation should have been made to quash cookle C J,
the information. The conviction must be affirmed. R. v. Hayes,
2 M. & R. 155. We reserve the right to the prisoners to sue out a
writ of error, if they think fit.
LuTWYCHE J. concurred, and referred to R. v. Wheeler, 7 C. & mtwyohe J.
P. 170.
Conviction affirmed.
56 QUEENSLAND JUSTICE OP THE PEACE.
[In Banco.]
R. V. LEVY.
[2 S.C.R. 166.— Note.— 29 Vic, No. 6, s. 3, is repealed, see now ss. 391, 398 of
Criminal Code.]
1871. Larceny as a bailee — Bailment — ValvMble security — Promissory
18th, 19th Dec. ^^^g — Passing of property — Larceny Act of 1865 (29 Vic,
Cockle C.J. No. 6), s. 3.
Lutioyche J.
L. was convicted of larceny as a bailee of a promissory-note under the
following circumstances : L. called at K.'s store and asked for an order for goods,,
and K. gave him an order for goods to the value of £54 lOs. ; L. asked then K. for
a promissory-note, as he was going to Brisbane that evening ; he said he put in .
the goods much cheaper than before, and he wanted the note. K. said, " If I
give you this promissory-note will you forward the goods at once ? " L. replied
"I wiU." K. then said, -" Should you not do so I request you to forward the
promissory-note at once." L. said, " Yes ; " then took out of a book a blank form
of promissory-note, and wrote on it and handed it to K. to sign. K. signed it and
gave it to L. ; the note was not stamped when handed to K., and there waa no
evidence to show at what time it was stamped. K. swore that L.'s name was in
the note when he signed it ; the goods were never forwarded by L., and subse-
quently the note was passed at L.'s request to his credit by B., to whom prisoner
had been previously indebted. K. wrote to L. for the return of the note, and
received one somewhat similar from L.
Hdd, that there was no reasonable evidence to go to the jury in support of
the information, that there was no property in K. of the promissory-note, and
that there was no bailment.
Crown Case Reserved by Lutwyche J.
The prisoner, Lawrence Levy, was tried before Mr. Justice
Lutwyche on 5th December on a charge of larceny as a bailee, and
the information alleged that he being the bailee of a certain
valuable security — namely, a promissory-note for £54 lOs., and
one piece of paper, the property of D. T. Keogh, of Ipswich,
unlawfully and fraudulently converted it to his own use. The
second count charged him with larceny of the said note. It
appeared from the evidence that the prisoner, on the 28th June,
called at Keogh's store, and asked him for an order for goods.
Keogh gave him an order accordingly for goods to the value of
£54 10s., and prisoner then asked him for a promissory-note,
as he was going to Brisbane by the coach that evening. He said
he had put in the goods much cheaper than before, and that
he wanted the note. Keogh said he would do so, and the follow-
ing conversation then took place : Keogh said " If I give you this
CBIMINAL EEPOETS, 1860-1907. 57
promissory-note, will you forward the goods at once ? " Prisoner ^ '^- 1'^^*-
replied, " I will." Keogh then said, " Should you not do so I re-
quest you to forward the promissory-note at once." The prisoner
said " Yes," and then took out of a book a blank form of promis-
sory-note, and wrote on it and handed it to Keogh to sign. Keogh
signed it, and gave it to the prisoner. The note was not stamped
when handed to Keogh by the prisoner, and there was no evidence
to show at what time it was stamped. Keogh when asked if
the name " Laurence Levy " was put in the note by the prisoner
when he was in his (Keogh's) shop, said he could almost swear it
was in the note when he signed it, and on re-examination said
he had not the slightest doubt about it. The goods for which the
promissory-note was given were never forwarded by prisoner,
and on the 3rd July the note was passed at his request to his
credit by Mr. E. Barnett, to whom the prisoner had been previ-
ously indebted. On the 17th August Keogh wrote to prisoner to
send him the note or the goods, and on the 18th the prisoner
wrote to Keogh in reply, stating that he had done as requested.
Enclosed in the prisoner's letter was a piece of paper, purporting
to be a cancelled promissory-note, similar in all respects to that
signed by Keogh, except that it was unstamped, that the date
when due was wanting, that part where the signature should have
been was torn oJEE, and that it bore only one endorsement, which
was cancelled. The promissory-note signed by Keogh was
dishonoured when it arrived at maturity. At the close of the
case counsel for prisoner submitted that there was no case to go
to the jiury, and urged that there was no evidence (1) of a bailment
by Keogh to prisoner ; (2) of the note being available security
within the meaning of the Act, 29 Vic, No. 6, s. 3 ; (3) of Keogh's
property in the promissory-note ; (4) of the existence of any piece
of paper as such after Keogh had signed the promissory-note ;
(5) of the completeness of the instrument as a promissory-note
when it left the hands of Keogh ; and (6) of the value of the piece
of paper charged to have been stolen by the prisoner as a bailee.
The case was left to the jury, who found the prisoner guilty of
larceny as a bailee, and he was sentenced to imprisonment with
hard labour for twelve months in Brisbane Gaol. The question
reserved was — was there any evidence to go to the jury in sup-
port of the conviction upon the information laid against the
prisoner ? If the Court should be of the opinion that there was
such evidence, then the conviction was to stand affirmed ; but
if there was not such evidence, then the conviction was to be
avoided, and the proper entry made on the record accordingly.
68 QUEENSLAND JUSTICE OP THE PEACE.
R. v. Levy Blake Q.C. and Hely, for the prisoner : There is no evidence
of bailment ; the whole transaction does not constitute that which
the law calls a bailment. Whether there was fraud or not on
the part of the prisoner is not the question, but whether there
was larceny as a bailee. To constitute a bailment there must be a
deUvery of something of value to a bailee, either to be kept or
to have that value increased by something to be done by the
bailee, and, at a specified time, afterwards to re-dehver the
thing in its original state, or with some improvement on the thing
into which it had been converted to the bailor (Coggs v. Bernard,
1 Smith's L.C. 177), and to constitute a bailment of the fifth kind,
there must be a deUvery to carry or otherwise manage for a
reward to be paid to the bailee. Nothing of any value passed
from Keogh to the prisoner. This is not a case where the bill
was delivered for discount, it was delivered for payment. It
was not a bailment, because the thing delivered by Keogh to the
prisoner was not to be re-delivered, nor was that into which
it was to be converted, to be re-delivered ; see Cockburn C.J.
{R. V. Hassall, L. & C. 62). Here the prisoner was not bound to
return the specific coins he received. Does not the word, bailee,
imply that the thing received is to be specifically returned ?
A bailee must return either the article received, or something
into which it has been converted in accordance with the terms
of the bailment. What the prisoner had was never the property
of Keogh [R. V. Phipoe, 2 Leach CO. 673, at page 679). " It is
essential to larceny that the property charged to have been
stolen should be of some value ; that the note in the present
case did not, on the face of it, import either a general or a special
property in the prosecutor ; and that it was so far from being
of any the least value to him, that he had not even the property
of the paper on which it was written ; for it appeared that both
the paper and the ink were the property of Mrs. Phipoe, and the
dehvery of it by her to him could not, under the circumstances of
the case, be considered as vesting it in him." He had not to
return the identical thing to Keogh, and if it was worthless it
was never a valuable security. (29 Vic, No. 6, s. 3). It was
merely Keogh's acknowledgement of indebtedness (Rex v. Hart,
6 C. & P. 106). The note was primarily prepayment for goods
which the prisoner was to send to Keogh, and if he did not send
the goods, he was to get the note back, and as he did not send the
goods it is a case of fraud, or at least a breach of contract. The
note was not a valuable security until it passed into the hands
CRIMINAL EEPORTS, 1860-1907. 59
of Barnett. If the prisoner had not discounted it before it becatae ^ v^^vy.
due, it would have been worthless ; because if he sued Keogh, a
total failure of consideration could be pleaded. The position
of the prisoner was more that of a trustee of the note than any-
thing else, and certainly he was not a bailee. He entered into
a collateral contract, and cases which tend to convert the ground
of civil action into a criminal offence are to be followed with
caution {Bex v. Shea, 7 Cox C.C. 147). It was a contract to
deliver, not to re-deUver. Another point is this, being a chose-in-
aotion it is not the subject of larceny, Beg v. Watts, Dea. 326 ;
B. V. Morrison, 8 Cox C.C. 194. The conversation between the
parties amounted to an agreement on the part of the prisoner
to negotiate the note, and however the transaction is looked at
it is impossible to make it appear as a bailment. The note or
chattel was never the property of Keogh ; he never had it in his
possession except to write upon it ; and as no property passed
from Keogh to the prisoner there could be no bailment. All
that could have passed was a future right to possession of the
note. No property passed from Keogh ; the paper was not a
valuable security {B. v. Lowrie, L.E.. 1, C.C.R. 61) ; and there
was no bailment.
Bramston A.O., for Crown.
The Couet suggested that counsel for the Crown should confine
himself to the question of property, as on that the whole case
would turn.
Bramston A.G. : The note was the property of Keogh as soon
as it was handed to him by the prisoner, Evans v. Kymer (1 B.
& Ad. 528). When prisoner handed over the note he parted
with all the property in the note — deHvery on request is quite
a sufficient consideration for transfer of the property. If it was
not in his possession it never was a complete note, he never
dehvered. If it was never in Keogh's possession then he could
not have signed it. He had a right to demand the note again,
Treuttel v. Barandon (8 Taunt. 100) ; B. v. Smith, 21 L.J. (M.C.)
111). Keogh could have refused to part with it after he had
signed it, and when prisoner handed the complete instrument
to Keogh, he parted with the property. The document was
received by the prisoner on the express condition that it was
to be returned to him ; and that is sufficient to constitute a
bailment. There was no necessity to show actual value, but the
€0
QUEENSLAND JUSTICE OF THE PEACE.
R. V. Levy.
Cockle C.J.
Lutwyche J.
moment the note passed from the prisoner it became a valuable
security for the amount stated. The cases quoted by the other
side do not apply. Keogh could have recovered on an action in
trover, and if he had sufficient property in the document to sustain
such an action, it cannot now be set up that he had no property
in it. The property was in Keogh, it continued his property,
and there was a bailment. In fact, the jury found that the
bailment was complete, and therefore the conviction should
stand affirmed.
Blake Q.C., in reply, was not heard.
The Coukt held that there was no reasonable evidence to go
to the jury in support of the information. They were of the
opinion that there was no property in Keogh of the promissory
note, and that there was no bailment, and the conviction could
not therefore be sustained.
Conviction avoided.
Solicitors for prisoner : Macpherson & Lyons.
1871
81% November,
8th, 12th, aSnd
December.
Cockle C J.
Lutwyche J.
[In Banco].
In re COURT.
[2 S.C.R. 171.— Note.— See now s. 20 ol Criminal Code.]
Criminal Law — Felon — Escape — Re-arrest after expiration of
period of sentence — Discharge on habeas corpus.
A felon sentenced to five years' imprisonment escaped shortly afterwards,
and after the expiration of the period of sentence was re-arrested, and committed
to custody on a warrant of a magistrate.
Held on » return to » writ of habeas corpus, that he was illegally in custody,
but might be prosecuted for escaping. The prisoner was discharged.
Rule nisi calling on the Sheriff to shew cause why a writ of
habeas corpus should not issue, commanding him to have the
prisoner, Charles Court, brought before the Court. The prisoner
was sentenced on 14:th September, 1865, to two concurrent
sentences of five years' imprisonment with hard labour, for
horse stealing. He escaped from St. Helena on 16th August, 1866,
and was again lodged in custody on 4th August, 1871, under a
warrant of a magistrate, after the expiration of his term of im-
prisonment.
CRIMINAL REPORTS, 1860-1907.
61
Bramston A.G., for the Sheriff. A man cannot take advantage
of his own wrong, the prisoner should not therefore be allowed to
escape punishment of the felony of which he was convicted because
he has evaded it. He should not be punished for the offence of
escaping which is only a misdemeanour, instead of the felony.
The rule should be discharged. 1 Russell, 581, 586; citing 2
Hawkins, P.O., c. 19, s. 12 ; Wilkinson's Editn. (1866) of Plunkett,
p. 281.
Blake Q.C. and Griffith, for the prisoner. The term of sentence
has expired. The sentence commenced from the date of con-
viction. Coke, 52 a Pt. 3, Vol. III., 145. The proper course
would be to indict the prisoner for escaping, and all the legal
questions could then be decided. When the sentence com-
menced to run it was similar to the running of the Statute of
Limitations, which could not be stopped, and at the expiration
of the period from the date of the conviction the sentence expired,
and could not be prolonged. The only means by which a cumu-
lative punishment can be carried is by an indictment for an
escape. Bacon's Abridgt, 133 ; 2 Hawkins P.O., c. 18, s. 5 ;
4 Vic, No. 10 (1 Bring, 588) ; Easton's case, 12 Ad. & El. 645.
Griffith followed. The prisoner is now detained because he
has escaped. A man's liabiUty to punishment can only be
ascertained by a record. Groome v. Forrester, 5 M. & S. 316.
C.A.V.
22nd December, 1871.
The Cottbt referred to 3 Wm. IV., No. 3, s. 20 ; 4 Vic, No. 10,
s. 1 ; 18 Vic, No. 7, s. 2 ; 11 & 12 Vic, c. 42, s. 23 ; Form T. 1,
(Bring, 582, 588, 590, 779, 793) ; Easton's Case (ante), and ordered
the rule to be made absolute, the writ returnable at a later hour
of the same day.
The prisoner was then produced, and the return and writ read.
Griffith moved for the discharge of the prisoner.
Bramston A.G. did not claim to detain him as on a warrant of
commitment, two sessions of oyer and terminer having passed, but
claimed to detain him as of his original custody.
Per Curiam. The prisoner cannot be detained upon the
ground that he escaped before the expiration of his sentence, and
which has since expired. He might be prosecuted for escaping if
such a course is considered necessary.
Prisoner discharged.
Solicitor for prisoner : Bunton.
In re Court.
Cookie C.J.
Lutwyohe J.
62
QUEENSLAND JUSTICE OF THE PEACE.
1871.
18th December.
Cockle C.J.
Lutwyche J.
Cookie C.J.
[In Banco.]
REGINA V. PENN.
[2 S.C.R. 177.]
Criminal Law — Evidence — Deposition of absent witness — Evidence
and Discovery Act of 1867 (31 Vic, No. 13), s. 67.*
The depositions taken before justices of a medical witness, who was absent
from the trial of a prisoner on account of having to go to Sydney for the benefit
of his health, was held admissible as evidence.
Ji.y. Wicker (18 Jur. 252) followed.
Ceown Case Reserved.
This was a special case reserved from the last sittings of the
Supreme Court at Maryborough, when the prisoner was sentenced
to twenty years' penal servitude for shooting James Cleary.
The point reserved was whether under the provisions of The
Evidence and Discovery Act of 1867 the depositions of one of the
witnesses. Dr. Brown, should be admitted as evidence ; Brown,
who was suffering from consumption, having previously left for
Sydney for the benefit of his health.
Bramston, A.G., for the Crown. The question is whether a
witness, who leaves town for the benefit of his health, is too iU to
be able to travel ; if Dr. Brown had resided anywhere else the
depositions must have been received. Section 67 of the Act pro-
vides for cases where the " witness shall be so iU as not to be able
to travel," which means, so ill as not to be able reasonably to
attend. Archbold, Edn., 1867, p. 230 ; B. v. Biley (3 C. & K.
116) ; B. V. Coclcburn, Dears & B., 203, 26 L.J. (M.C.), 139;
Boscoe, 7th Edn., 66 ; B. v. Wicker, 18 Jur., 252 ; Taylor, p. 406.
No one appeared on behalf of the prisoner.
Cockle C.J.
be affirmed.
I am of the opinion that the conviction should
Lutwyche J. LuTWYCHE J. : I am of the same opinion on the authority of
B. V. Wicker.
Conviction affirmed.
* Compare Justices Act (50 Vic, No. 17), s. 111.
CRIMINAL REPORTS, 1860-1907.
63
[In Banco.]
R. V. COATH.
[2 S.C.R. 178.— Note.— See now ss. 354 and 355 of Criminal Code and Pacific
Islanders Protection Act, 1872 (35 and 36 Vic, No. 19), s. 9.]
Criminal Law — Kidnapping — Slavery.
The ship Jason, from Queensland, visited certain islands in the South Seas,
inhabitants from which came out to trade, and were forcibly seized, detained,
and brought to Maryborough, where they were set free.
Hdd (afBrming Ltjtwyche J.) that as the islanders had been detained and
brought to Queensland in a British ship against their wills, the offence of kid-
napping had taken place, and the Court had jurisdiction to try the persons charged.
The history of slavery reviewed.
Cbowk Case Reserved by Lutwyche J. on the trial of
the prisoner at the last criminal sittings of the Supreme Court
at Brisbane.
The prisoner was charged in the first count of the indictment
with the abduction and kidnapping of certain South Sea Islanders
in the month of January, 1871 ; the second count charged him
with an assault upon the said islanders ; the third with abduction
and kidnapping of nine other islanders in February, 1871 ; and
the fourth with an assault upon the same islanders. He was
found guilty on the third count, and not guilty on the other
counts, and was sentenced to five years' imprisonment in Birisbane
Gaol, and to pay a penalty of £50, and to remain imprisoned
until such fine be paid. In summing up the Judge directed the
jury that if they were satisfied that at the time of the commission
of the alleged offence charged in the third count, the Jason was
a British ship, and was sailing on the sea, she was sailing on the
high seas, and that the offence was triable here. He also
directed that if they were satisfied that the nine islanders, or
any of them, were brought on board or detained there against
their wiU, and carried away to another place, the charge of kid-
napping would be proved. Mr. Lilley, the defendant's counsel,
objected to the direction on both of these points, and the following
questions were accordingly reserved for the decision of the Court :
(1) " Was I right in directing the jury that if the Jason was a
British ship, and on the sea, she was saiUng on the high seas,
and that the subject matter of the inquiry was within the juris-
diction of the Court ? " (2) " Was I right in directing the
jury that if they were satisfied that the nine islanders, or any
1871.
18th December.
Cockle G.-T.
Lutwyche J.
64 QUEENSLAND JUSTICE OF THE PEACE.
K. V. CoATH. of them, were brought on board the Jason, or detained there
against their will, and carried away to another place, the charge
of kidnapping would be made out ? "
Lilley Q.C. and Blake Q.C., for the prisoner.
Bramston A.G. for the Crown.
Lilley Q.C. I ask that the case as stated be amended by stating
that the islanders when they were put on board the Jason were
treated in the same way as the other islanders who were on board,
and that they were landed free at Maryborough.
The Cottet. We refuse to allow the amendment, but consent
to the case being argued as if the facts referred to were set out
in the case.
Bramston A.G. mentioned R. v. Anderson, L.R. 1, C.C.R. 161.
Lilley Q.C. I do not think that the point raised by the first
question is tenable, and I will therefore address myself to the
second point. The question might be shortly stated thus :
" Did the case disclose any offence known to the English law ? "
I contend it does not, even admitting the facts to have been
proved. The question substantially is : " What is the offence
of kidnapping as known to the English law ? " Can it be com-
mitted on a savage or barbarous people captured and brought
within the protection of British law, and landed free at Mary-
borough ? (Stephens' Comm., 4th Edn., 163.) There is no
precedent of any kind for this conviction. The offence of kid-
napping only arises where persons are taken from under the
protection of the law of England, where the Sovereign is deprived
of a subject, or where there is a concealment of a person in any
part of the British dominions, so as to deprive the person of the
protection of the laws (B. v. Lord Grey, 2 Shower, 218 ; 1 RusseU,
962). Under the Roman law it was no offence to steal or capture
barbarous people, and the offence only existed where a freeman,
his wife, or child, was seized or held as a slave. It is no offence
to go to islands inhabited by a savage and barbarous people,
and to bring these people within the protection of the Enghsh
law. The only quaHfication which exists in The Slave Acts is that
such persons should not be captured or seized for the purposes
of being used as slaves. This might be morally wrong, and I
am not going to defend such transactions ; but the question is
whether there is an offence against the law. Until The Slave
CRIMINAL REPORTS, 1860-1907. 65
Acta inferior races could be enslaved. Slavery is not piracy ^- '• '^o*''^-
by the law of nations, but on the contrary it is lawful, and is
only made piracy by the municipal laws of England. The piracy
created by The Slave Acts is the carrying away of these men for
the purpose of using them as slaves. The carrying away itself
does not constitute the offence, and there is no case in the books to
show that the seizure of barbarians and bringing them under
the protection of the law is an offence against the law. The case
of Turbett v. Dassigney, 2 Shower, 221, was a pure case of kid-
napping, because the person was taken from under the protection
of the law. The moment these islanders touched the deck of
an EngUsh vessel they were free, and had a right to habeas corpus.
They were landed at Maryborough and were allowed to land
free : but it was possible that if they had been landed at Fiji,
which was not in the British dominions, the offence of kidnapping
would have occured ; because they would then be removed from
the protection of the law which they were entitled to by virtue
of being on board an English vessel. It is contrary to fact to state
that slavery was unknown to England, and the case of " The
Slave Grace," 2 Hagg, 94, showed that residence in England did
not make a slave absolutely free ; for, on returning to the place
from whence they came, they again became slaves. There is
clearly no kidnapping in this case, although there might have
been false imprisonment for a short time, for which it was com-
petent for the prisoner to have been punished. I therefore submit
the direction was wrong, and the conviction must be set aside.
(The following authorities were also cited : Dred Scott v. Sanford,
Howard's 19 U.S.R., 393 ; Somerset's Case, 20 S.T., 1-82 ; The
Penal Code of New York, 93, Austin, Vol. II., 242 ; Santos v.
Illidge, 8 C.B. (N.S.), 861 ; Reg v. Serva, 1 Den., C.C. 104 ;
The Daphne, 10 S.C.R. (L.) N.S.W., 37 ; 5 Geo. IV., C. 113).
Bramston A.G. The direction of the learned Judge was per-
fectly correct. There is no doubt the islanders were taken on
board against their will, and conveyed to Maryborough against
their will. It has been argued that this does not constitute
kidnapping, because it is not possible to kidnap a person of a
savage race if he is brought within the protection of the law;
but the effect of that argument is that a man is brought within
the protection of the law, and still that protection is refused by
preventing him from punishing the man who has infringed his
personal liberty. Throughout the whole of the argument of the
66
QUEENSLAND JUSTICE OF THE PEACE.
B. ■!;. COATH.
Ccckle C.J.
other side there is a fallacy which undermines the whole.- The
learned counsel has confused the efEect of the law with the law
itself. The illegality of man-stealing is not in the removal
of a man from England, but in the violation of that personal
liberty which the law of England recognises in every man (Stephens
Comm., 140 ; iJoscoe, 4th Edn., 568). If the right of the personal
liberty of these men was once touched, it cannot matter whether
they were brought to Queensland or elsewhere ; so long as it
was against their will, it was kidnapping. With regard to de-
priving the Sovereign of a subject, and taking a person from
the protection of the law, in these cases we have a condition which
necessarily attests to the illegal acts done, but it does not show
why the act is illegal. It tfan never be held to be the law of
England that the protection of the law is meted in proportion
to the civilization of a people. The savage has as much right
to protection under this law as the most highly educated. The
rights of these people to the protection of the law attached as
soon as they came on board the Jason ; they were then entitled
to the habeas corpus, *nd their right to demand the punishment
of those who had seized them also accrued. These people can
scarcely be called free, because they are unable to return from
whence they came, and they can get no redress. They are entitled
to enjoy the manners and customs and laws of their own country,
and their forcible removal was kidnapping. The Court should
remember that it was not the offence committed against these
people alone that it has to consider. It has also to consider the
serious injury done to the whole of the public by this outrage
of the law. It is the public peace that has been injured, and the
public has a right to demand punishment even in a greater
degree than the persons directly injured. In Lor^ Grey's case
(supra) it was the relations of the lady whom he concealed,
and the public, who demanded that he should be punished, and
not the lady herself. I therefore maintain that the conviction
must be maintained.
Lilley Q.G. replied.
Cockle C.J. : Although I cannot say I was convinced, I was
very much impressed, by the very learned argument which Mr.
Lilley advanced, and which he, I crave leave to say, pressed
properly on the Court, because the Court is never more in danger
of going wrong than when it is disposed to be likely to decide
upon emotional grounds ; and this is a case which ought to
CRIMINAL REPORTS, 1860-1907.
67
be decided solely on legal grounds. However bad the law may
be, the Court best does its duty by rigidly enforcing it, and
thus enabling its abuses to be perceived, and leaving it to the
Legislature to correct such abuses, and therefore as far as I am
concerned, I do not think any emotional ground weighs with me
at all in dealing with this matter ; but I do give considerable
scope to the argument from public policy which has been adverted
to on behalf of the Crown. We have no right, certainly in the
exercise of an arbitrary discretion, to say that this is a mis-
demeanour which the law does not say is a misdemeanour. We
should be careful not to do that ; but we may fairly say, and
not for any rhetorical reason at all, what would be the conse-
quences of disturbing this conviction, and of saying that the
facts which constitute the evidence on which the conviction was
founded do not constitute a misdemeanour ? We may fairly
and temperately look at these consequences. It would appear
that men — whether savage or civilized perhaps we are hardly
able to say, for there are degrees of civilization as well as of
everything else, but at any rate civilised enough to traffic, to
come in the way of the ship with the intention of trading, as was
•evidenced by their holding up a pig — these men are, after a
■display of force, thrust into a boat, and so induced to go on board
ship, and I cannot help thinking that some disregard for the
lives of these men was shown, for one poor fellow jumped over-
board and swam as he no doubt thought for his life. He was
brought back in an exhausted state, and if he had not been taken
on board it is quite possible he might have been drowned before
reaching land. Therefore, taking all the circumstances, we say
here is a display of something like treachery; a seizing of persons
who came to trade, and a disregard shown to life by attending
rather to the capture of those who were going on board than to
the poor fellow who ventured on a long swim for his life. Then
there is the example shown by these savages — one, an old man,
weeping perhaps for the thoughts of those whom he had on shore,
and who were weeping for him, and not only that, but after he
and the others were thrust down the hold, their yams and pigs
were appropriated, and their canoe used for firewood. I do
not use this for any rhetorical effect. It is obvious that any
Court would, if it could, avoid it ; but we must consider whether
one subject of Her Majesty is at liberty to fit out a vessel to sail
amongst these apparently savage and guideless islanders, and
seize them and appropriate their property a appears to have been
B. V. COATH.
Cookie C.J.
68 QUEENSLAND JUSTICE OF THE PEACE.
R. V. CoATH. (jone in this case. It is the more necessary that we should fix
Cpclile C.J. our attention on this, because it should be noticed that with the
improved manners and greater knowledge of succeeding ages,
the maxims of ptevious ages are deviated from. We see with
regard to the English law of evidence, in the case of Omichund
V. Barker (WiUes 538, 1 Atk. 21) in which for the first time, it
was recognised that difference of religion made no difference so-
far as giving testimony was concerned — when the great authority
of Lord Coke was cited to show that the evidence of a Jew ought
not to be admitted, Chief Justice WiUes said that the reasons
given, though coming from a great man, were not such as he
would follow, and he reversed, or rather did not act on the
decision of Lord Coke, but took the more correct view — the view
recognised by succeeding ages — that such narrow reasons did
not suffice to guide the law of evidence. Therefore we may
take it for granted that with the increasing culture and humanity,,
and toleration of ages, some of the old maxims should be moder-
ated. Though it is a difficult question to say what the law
may have been; and whether there is any authority to show
that the common law would have regarded this as anything^
but a grave outrage, we know that a great many deeds of violence
were perpetrated in America — take, for instance, in Spanish
America, where such deeds were done, not with the sanction of
the Spanish Government, but against their remonstrances, and
such forces as the then King could bring to bear were found
insufficient to remedy the abuses. We have no means of knowing
how far this institution of slavery was the result of law or perpetu-
ation by custom of what was originally a cruel abuse. There is-
no doubt, let it arise how it will, that colonial slavery does appear
to have been recognised in the English Courts ; but it must b&
remembered that these Courts did not make the law, but that
they were recognising a law made in some other places ; and I
confess that when it comes to the question of deciding upon the
rights of a man to his liberty, we are called upon to narrowly
scrutinise the old doctrines. Can it be said that because the
Courts recognised slavery in the British dominions that they
would recognise any sort of slavery ; that they would allow
an unfortunate Frenchman to be seized by any person who chose
to call him his slave ; and if such a person asked the Court to
recognise him as his slave, there is Uttle doubt that the Court
would refuse. I believe that any Court which is called upon to
restrain the liberty of a man on the ground of being a slave would
CRIMINAL REPORTS, 1860-1907. 69
fully examine the law and the circumstances to ascertain how ^- '"■ C"^™-
far the ground was good. Even among the sterner and wealthier Cockle O.J.
nations of antiquity they would go past the grounds on which a
man was alleged to be a slave if any such question did arise,
and it would have to be shown how far such slavery arose ; and,
as far as I am aware, it would be the result of capture in war,
or for some crime a man might be adjudged to slavery, or for
debt ; or again, in some of those parts of the world parental
authority might empower a father to make his son a slave, or
there might be a contract by which a man might become a slave,
or a custom — such, as I hope, sprung up in the colonies in spite
of the Common Law of England. There may be so many origins
to restraining the liberty of human beings, but to which of these
sources could the right of anyone be traced to sail out of the port
of this colony, and act as these persons have done to these people
of the Southern Ocean ? The state of the law might have escaped
notice at home ; but it ought not to escape notice here. In
England these matters were comparatively unimportant. The
persons whose rights were torn away were for the most part from
the coast of Africa, a long hne of trade across portions of the
ocean through which no man went except engaged in the nefarious
and cruel traffic. Ordinary persons at home were not likely to
be depending on barbarous treaties or the like ; but here it is a
very different question. This trade is carried on across the high-
way through which much of the commerce of these parts passes,
and along which, as time rolls on, probably more of it ■will pass,
and in which are islands inhabited by tribes, or nations — or call
them what you will — of the very class of persons brought under
our notice in this case ; and if once amongst these nations an
opinion should get abroad that our law proceeded upon principles
so inhuman that their rights could be violated with impunity by
any man who may choose to sally forth to outrage them, I say that
the safety of commerce itself and the blessings it maintains — the
safety of our fellow-subjects and fellow-colonists — would be
endangered ; and I think that in saying this I am only drawing
an inference that the Common Law itself would draw. It is not
on any narrow or technical principle that I base my opinion
that this conviction should be sustained. I think that the cases
decided upon the point of slavery are valuable and important,
but still in this particular case I cannot help thinking that there
is a strong bias, not, I hope, affecting the Court consciously,
but we must remember that different views may be entertained.
70
QUEENSLAND JUSTICE OF THE PEACE.
B. .;. CoATH. and we must expect to find different views prevailing there.
SooklTc.J. Taking a general view of the case, we cannot do otherwise than
affirm the conviction. I had some doubts as to the meaning of
kidnapping, but Mr. Justice Lutwyche threw out an observation
which removed the difficulty. Of course, we decide the case
simply as it comes before us, and therefore the conviction must
stand.
Lutwyehe J. LtTTWYCHE J. : I adhere to my ruling at the trial, and I think
the direction I gave the jury was right. I told them that if they
were satisfied that these nine islanders, or any of them, had been
taken on board and carried away to another place against their
will, the charge of kidnapping had been made out. One form
of kidnapping is steaUng and carrying away a man — not any
British subject, not any civilised man, but any human being —
man, woman, or child, and if so, the Common Law of England
will undoubtedly apply to the offence of which the defendant
has been found guilty, as kidnapping. It has been said that
there are no instances of a case of this kind having been brought
before the English Courts, and the cases referred to are principally
cases of abduction, which is a taking or carrying away, sometimes
with, and sometimes against, the will of the party, and in these
cases the concealment of the person was the main ingredient of
the charge. But I think that although no instance has been
cited, and perhaps none can be found, in which a charge of this
kind has been made before the English Courts, yet that does not
affect the Common Law, which says to the subjects of England
you shall not, at your peril of fine and imprisonment, take,
steal, or carry away any human being. And yet men are found
to sail forth from a port of this colony, and seize and carry away
certain persons found on the high seas — they are called islanders,
and whether they are civilised or not matters not. They have
a right to Uberty, which is inherent in all human beings, although
at times that inherent right has been taken away by force. But
we have nothing to do with that ; we must assume that at the
time these men were taken they were freemen, and that being
so it is an offence on the high seas by persons subject to the juris-
diction of the British Courts. It is an offence against the public
— a serious offence against the public in this case — for, as has
been pointed out, the consequence of our holding that this was
not such an offence as contemplated by the Common Law, would
be a lasting prejudice to the position of England, and the welfare
of the colonies which form her empire. If we were to hold that
CEIMINAL EEPOETS, 1860-1907.
71
men sailing from these ports were able to make these excursions,
and treat persons whom they find on the high seas in the same
way as these islanders, we would have a league of nations formed
against Great Britain and her dependencies ; and it would be
impossible, if we were to maintain such a principle, to uphold
the position which Great Britain at this time happily occupies.
I will not say I regret, because I think justice has been done ;
but I may say that I should not have been surprised if the heavier
charges which would have been attended by graver consequences,
had been brought against the defendant in this case. There
can be no doubt upon the facts set out, that robbery and depre-
dation on the high seas were committed, and robbery and depre-
dation amount to piracy. The defendant may, therefore, think
himself fortunate that he was tried on the lighter charge, and
sentenced to only five years' imprisonment and a fine of £50,
instead of being tried for the graver offence, for which he might
have been sentenced to penal servitude for Ufe. I have nothing
further to add. I have only to repeat that the direction was
right, and I think the conviction ought to be affirmed.
Conviction affirmed.
Solicitor for defendant : R. K. Macnish.
B. V. COATH.
Lutwyche J.
[In Banco.]
EMMERSON v. CLARKE.*
[3 S.C.R. 76. — Note. — Re Haughton, cited in toot note, was also reported in 5 S.C.R.
53, and is reprinted herein, post. See also Millis v. Kiefer (10 Q.L.J. 142,
post), and CUSord v. Wliite (4 Q.J.P.R. 132, 1910, St. R. Qd. 364).]
Cattle Stealing Prevention Act (17 Vic, No. 3), s. 61 — User^
Tresspass — Prohibition — Penalty — Objection not taken in Court
below — Costs.
To constitute an " user " under s. 6 of 17 Vic, No. 3, there must be an employ-
ment of the animal taken for the purposes of profit, convenience, or pleasure. The
intent is immaterial. A person might be brought within the provisions of the Act
without evidence of » " taking."
In re Bowman (6 S.C.R. (N.S.W.) 15), questioned.
Application on behalf of Daniel Ralph Emmerson to make
absolute a rule nisi calhng upon Francis Clarke, Frederick William
1872.
9th, ISth
September.
Cockle a.J
Lutwyche J.
* Followed in Be Haughton (1 Q.L.R. (Pt. II.) p. 53),
t The Criminal Code (63 Vic, No. 9), s. 445
72 QUEENSLAND JUSTICE OF THE PEACE.
Emmeeson v. Myles, William Clarke, and Frederick Kilner, justices, and Norman
Claeke. shadwell Campbell Berry, informant, to show cause why a prohibi-
tion should not issue restraining further proceedings on an order
made by the said justices at the Police Court, Bowen, convicting
the appellant of unlawfully using cattle contrary to the pro-
visions of s. 6 of the Act 17 Vic, No. 3, and why Berry should
not pay the costs occasioned by the proceedings on the grounds
(1) that there was no evidence of any using of the cattle within
the meaning of The Cattle Stealing Prevention Act ; and (2), that
certain of the justices who adjudicated in the matter were not
present during the whole of the trial. From the affidavits in
support of the rule it appeared that Daniel Ralph Emmerson,
the proprietor of Proserpine run, was summoned on the informa-
tion of Berry, the superintendent of Crystal Brook run, which
adjoins Proserpine, under s. 6 of 17 Vic, No. 3, for taking and using
26 head of cattle. Part of the evidence — the examination in
chief — of Berry was heard before Francis Clarke, R. S. Warry,
and F. W. Myles on the morning of 9th of April, and at 1 o'clock
an adjournment took place for an hour. When the Court resumed,
Warry did not sit again in the case, but Wilham Clarke and
Frederick Kilner took seats on the Bench, and although the
evidence taken before the adjournment was not re-sworn or
taken afresh, they adjudicated in the case. From the evidence
adduced at the hearing it appeared that, on the 31st of March
previous. Berry found in the yards of Crystal Brook some cattle
which were claimed by William Emmerson, son of the defendant,
and 26 head belonging to Mr. Holt, the proprietor of Crystal
Brook. The cattle claimed by William Emmerson — about 25
head — had been placed there by Berry's permission. About
sundown the same day the defendant, D. R. Emmerson, came
to the yards with two men and said he had tracked some cattle,
which had been stolen, from Proserpine to Crystal Brook yard,
and that the animals in the yard were the same. Berry said
some of the cattle were his, and some were claimed by Wilham
Emmerson, but the defendant claimed them as having been stolen
from his run. After some conversation Berry told him to draft
out the cattle he claimed, but the defendant said it was too dark
to draft then, and he would take the lot. He then threw down the
rails and told his men to drive the cattle out. Berry called upon all
present to witness that he was taking the cattle forcibly. Defend-
ant drove the cattle away, and as he did so he said, " I will be
responsible to Mr. Holt for all cattle of his that are here." Berry
CRIMINAL REPORTS, 1860-1907. 73
replied that he had committed an illegal act, and would take Bmmekson v.
Clarke
proceedings against him. On the following day Berry saw some
of the cattle at Proserpine, and defendant asked him to take
possession of them, which he refused to do. On the same day
he received the following letter from the defendant : — " There
has been some cattle illegally driven off Proserpine run, and as
soon as I heard of it I got my horses and tracked them to Crystal
Brook yards, where I took possession of them, and brought them
to Proserpine. The following morning I found there was some
of your weaners with them, and by your man's assistance we
drafted them, and I now send them back to Crystal Brook. In
coming up to Proserpine last night we lost some owing to the
darkness. I have sent my men to look for them. I shall be
obUged if you will assist them, and let me know if there is any
more of our cattle on Crystal Brook run. P.S. — I shall be muster-
ing several more days, and request you to send a man up to assist
collecting the remainder of your cattle." Berry subsequently
laid an information against defendant, and obtained a warrant
to search for the cattle belonging to Mr. Holt. He found 14
head and a calf, but not the others. There was a dispute going on
about agistment between the defendant and William Emmerson,
who drove the cattle he claimed and some of Holt's from Proserpine
into Crystal Brook yards. He had no permission to remove the
cattle from Proserpine. It appeared from the evidence of Daniel
Emmerson that he and defendant and another man drove the
cattle claimed by William Emmerson out of th? yard, and the
others accompanied them, and were not taken voluntarily or
intentionally. It was too late to draft them, and they could
not help the others following. The amount due for agistment
had not been paid when William Emmerson took the cattle off
Proserpine. The Bench found the defendant guilty, and inflicted
a penalty of £3 per head — amounting to £78 — and £11 costs and
expenses.
Affidavits in reply were read, from which it appeared that when
Wm. Clarke and Frederick Kilner took their seats on the Bench
the evidence of Berry, which had been previously taken, was
read ; and after his cross-examination the whole of his evidence
was read over, and he stated that it was correct. It was also
stated that the Justices were unanimous in their decision.
Lilley Q.C. and McDevitt, for the appellant, moved the rule
absolute.
Blake Q.C, for the informant. The conviction was right..
74
QUEENSLAND JUSTICE OF THE PEACE.
Emmebson v.
Clabke
Lutwyche J.
The defendant went after the cattle for the purpose of retaking
them because the agistment had not been paid ; but he had no
right to do, because a person could not have a lien on cattle for
agistment. Even as far as William Emmerson's cattle were
concerned, defendant had no right to interfere, because they were
in possession of the owner. (Plunkett, p. 67, note (a) ; In re
Bowman, 6 S.C.R. (N.S.W.) 15 ; B. v. Frew, 7 S.C.R. (N.S.W.)
111). As to the proceedings before the Magistrates, it was
sufficient if the whole of the evidence was heard before two justices,
Bramston A.O. : The magistrates were unanimous. Courts are
unwilhng to inquire into the votes of justices. (Penny v. Slade, 5
Bing. N.C. 469, 8 L.J.C.P. 221 ; B. v. J J. of Leicestershire, 1 M. & S,
442, 14 R.R. 494). The defendant's conduct closely approached
a breach of the peace.
Lilley Q.C. : According to the Act, if therewas a taking without
a using, there could not be a conviction, There must also be a
dishonest object or purpose. The cattle might be taken by
accident, unintentionally, or under a claim of right.
C.A.V.
13th September, 1872.
Lutwyche J. : The rule nisi was moved for on two grounds.
First, that there was no evidence of a user by Emmerson of the
Crystal Brook cattle ; and, secondly, that the case was not heard
whoUy and throughout by all the justices who signed the con-
viction. With regard to the second point, we are both of opinion
that it cannot be sustained ; first, because there were two justices
who heard the case from end to end, and according to s. 6 of
2''h,e Cattle Stealing Prevention Act a conviction may be by any
two justices of the peace in Petty Sessions assembled ; and,
secondly, because if the objection that the whole case was not
heard by all the justices was not taken at the time, it appears
from authority that, although the witness was not sworn in the
presence of the other justices — in this case the three other justices
— nevertheless, his evidence would not be open to rejection.
It appears that when a witness is not sworn on a trial, and the
objection has not been taken at the trial, that the person against
whom the verdict is found, and against whose interest the evidence
is taken, is not entitled on that ground to a new trial ; and we
think therefore that, on both of these grounds, that the second
objection cannot prevail. With regard to the first objection,
I am of opinion that there was no reasonable evidence from which
CEIMINAL REPORTS, 1860-1907.
75
the justices who heard the case, and who convicted Emmerson,
could infer that there had been a user by Emmerson of the
Crystal Brook cattle. The Act under which the charge was
brought against Emmerson, like most Acts that were passed
in the earlier Legislative days of the parent colony, is difficult
to construe according to the ordinary rules of construction which
are applied to legislative enactments ; but in the present case
I think we may see our way very clearly to the conclusion that
Emmerson has not brought himself within the penal provisions
of s. 6 of the Act. The penalty under that section being only for
using it is clear there must be evidence of user. Now, it may be a
matter of some difficulty to say what is evidence of user, but in
most cases referred to by the Act there would be evidence from
which a user might be inferred. In the first place the Act says :
" If any person shall take, use, or in any manner work any cattle ; "
and it is clear that " cattle," as described in the second section,
could not be worked without being used, and the penalty in the
sixth section is confined to cattle that are used. The second
section, in defining the meaning of " cattle," says it shall extend
to and include horses, mares, filUes, foals, geldings, colts, bulls,
buUocks, cows, heifers, steers, calves, sheep, lambs, goats, pigs,
mules, and asses. Many of these are animals of draught or burden,
and some, which are not animals of draught or burden kiay, never-
theless, be used within the meaning of the sixth section. Sheep,
for instance, might be shorn, and in that case it would be a user.
It might require some ingenuity to determine how pigs might
be worked or used (unless actually appropriated) , though they
might be taken. But I think, in respect to all the other animals,
there might be a user, though not perhaps a working, as in the case
of sheep or milch cows, which might be used by being milked.
The question then arises : Was there any evidence given before
the justices from which they could infer that there was a user of
Crystal Brook cattle ? It appears from the evidence that these
cattle, together with some twenty-six head which had been pre-
viously on Proserpine run, had been tracked from that run to Mr.
Holt's yard at Crystal Brook, and that Emmerson went to that
yard at night, and under a claim of right to the Proserpine cattle,
ordered his men to let down the rails and drive the Proserpine
and Crystal Brook cattle away. That is all that appears from the
evidence given on behalf of the prosecution, and I confine myself
to that, because we do not sit here to try the case over again,
or to determine whether the justices might not, if they had heard
Emmerson v.
Clakke.
Latwyche J.
76
QUEENSLAND JUSTICE OP THE PEACE.
Emmebson v.
Clare;e:.
Lutwyohe J.
the whole of the evidence, have safely arrived at a different
conclusion. It is enough if we can gather from any of the evi-
dence that there was sufficient to warrant the justices in arriving
at the conclusion that the cattle had been used. Now, in the case
referred to by the learned Attorney-General and Mr. Blake, the
Supreme Court of New South Wales upheld the direction of Judge
Meymott that if the cattle were driven away without the owner's
consent, even if only for the purpose of inducing other cattle
to go quietly, that would be a user ; and I am far from saying
that there might not be cases in which driving away a stranger's
cattle for the purpose of enabling others to be driven quietly,
or that cases would not arise in which such a taking would be
a user. According to my construction of the Act, to constitute
a user there must be an employment of the animal taken for the
purposes of profit, convenience, or pleasure. Intent, I take to
be immaterial. It does not seem to me to be at all within the fair
construction of the Act that there should be any intention, honest,
or dishonest. The act is sufficient if it be for the purpose of ob-
taining profit, or of certain convenience to the person taking the
animal, or for his own pleasure or amusement. Bilt it does
not seem to me in the present case Emmerson took the Crystal
Brook cattle either for his profit, or his convenience, or his pleasure.
It was too dark, as the evidence shows, to draft the cattle,
and he was anxious to get his own cattle, or those he claimed
as his own, home as soon as he could. Now, they were Proserpine
cattle, and certainly they would not require the assistance of the
Crystal Brook cattle to enable them to find their way back to the
run from which they had been taken. There could have been no
inducement operating on the mind of Emmerson to make him
take the Crystal Brook cattle, and it appears that at the time
he offered to be responsible for all Mr. Holt's cattle that were
there. So far, then, from being a source of profit or convenience,
or pleasure to him, he would have been much better without the
Crystal Brook cattle than with them. He took no particular
pains to keep them together, for eight of them were missed on the
road before arriving at Proserpine Station, and it seems to me
that the driving away of the Crystal Brook cattle was incidental
only to his desire to re-obtain possession of the cattle he claimed
as his own property. I think, therefore, there was no reasonable
evidence from which the justices could come to the conclusion
they did come to. I observe that in Bowman's Case (6 S.C.R.
(N.S.W.) 16) the Court seemed to have thought that in order to
OEIMINAL REPORTS, 1860-1907.
77
bring a person within the provisions of the sixth section, there
must be a taking as well as a using. A cow, in that particular
instance, was found on the run, and was only milked, and they
considered the conviction ought not to have been made, but I
confess that if a case of that kind should come before this court,
I should pause before I came to the same conclusion. I think
the proposition is laid down much too widely. I think a person
might be brought within the provisions of the Act without a
taking at all ; for instances have occurred, and may occur again,
where the services of a valuable entire or bull have been obtained
without taking the animal, simply by taking down a portion of the
fence of the paddock in which they were closed, and letting in
cows or mares — a very serious offence, and one which I hope will
be severely punished when it is proved. I think in that case,
without a taking, such a using would be within the meaning of
the section. Without going further at present — because it may
be expedient to consider in what way this appUcation should be
dealt with — I think in justice the prohibition ought to issue,
but as a matter of pure justice only — strict justice on a point
of law, because I cannot conceal from myseK that the conduct
of Emmerson was quite unjustifiable. He committed a wilful
trespass, and was guilty of conduct which almost amounted to a
breach of the peace, and certainly tended strongly to provoke
an offence of that kind. I do not consider that the applicant
is at all entitled to indulgence or anything like the favourable
consideration of the Court. As a matter of strict law, I think he
is right in this application, and therefore the prohibition should
issue. It might perhaps be better for him to allow the conviction
to stand. We have power to make him pay costs notwithstand-
ing that we have directed the prohibition to issue, .and we must
do what we think is fair and just under the circumstances of the
cases. On that point I shall, in conjunction with the learned
Chief Justice, reserve my decision as to the particular way we
will deal with the costs or the return of the money, which is op-
tional. In Bowman's Case, the fine having been paid and distri-
buted, the Court refused to make any order as to the return of the
money, but they ordered the prohibition to issue.
Cockle C.J. concurred.
The prohibition was allowed ; the question of costs and the
return of the money reserved.
18th September.
Cockle C.J. : This conviction was the unanimous decision
Emmebson v.
Cmbke.
Lutwyohe J.
Cookie C.J.
78
QUEENSLAND JUSTICE OF THE PEACE.
Emmbeson )■.
Clarke,
Cockle C.J.
of four justices, who, in our opinion, rightly heard the case through-
out ; but on a strict interpretation of the law, and with no merits
that we can see, the defendant has come before us to reverse the
proceedings. He has not come simply to relieve himself from
the burden inflicted on him, but, in the first place, he prays costs
against the prosecutor ; he makes an imputation against one of
the justices ; and he raises one unfounded ground of appeal.
Now, being of opinion that the conviction could not be sustained
on the evidence, we must, of course, relieve him from the conse-
quences of it ; but he has no claim to our consideration on the
question of costs. We cannot make him pay the costs on the
whole of the rule, because it would be unjust to say that he should
pay the costs of relieving himself from a judgment which cannot
be sustained ; but so far as the form of the rule is concerned,
considering that he had brought persons before us who would
otherwise have refrained from coming here, we think that the
rule must be made absolute. He will, of course, get no costs,
and he will pay the costs of William Clarke, and he will also pay
the respondent Berry and the justices the costs occasioned by so
much of the affidavits as relate to the second ground of the rule.
The penalty and costs must be returned, and the conviction
must be quashed.
1873.
15th October.
Ltitu-yche J.
[In Chambers.]
R. V. KELLY.
[ 3 S.C.B. 199.— Note.— Ss. 27 and 28 ot 35 Vic, No. 4, are repealed, see now ss.
447 and 448 of Criminal Code.]
The Brands Act of 1872 (35 Vic, No. 4), ss. 27, 28, 35— Wilfully
branding — Evidence of owner shif.
A registered brand is prima facie evidence of ownership for the prosecution, but
is not to be used for evading a prosecution.
Section 27 of The Brands Act of 1872 applies to all cattle, branded or unbranded,
and it is no defence to a prosecution under that section to say that the defendant
had made himself amenable to the provisions of s. 28.
Application for an order nisi for a writ of prohibition against
G. W. ElUott, Police Magistrate, Toowoomba, and John Hegarty,
of Stoney Pinch, near Toowoomba, farmer.
Hely in support of the application.
The facts of the case were as follow : — On the 3rd of October,
CRIMINAL REPORTS, 1860-1907. "79
Thomas J. Kelly was charged before the Police Magistrate of E. d.^Kelly.
Toowoomba, on an information laid under s. 27 of The Brands
Act of 1872, with wilfully branding a heifer, of which he was
not the rightful owner, with his registered brand. John Hegarty
swore that the heifer in question was his property, and that it
bore his brand JH on ribs and No. 2 on the rump on the milking
side. Two months ago he missed this heifer and another steer,
but on October 26 she came back, and he then noticed that
she had the brand TKO over his (Hegarty's) No. 2, and that she
had been newly ear-marked. This brand he discovered to be
defendant's registered brand, and the next day he went to his
place and told him that he had made a mistake in branding the
heifer. Kelly said it must have been a great mistake if he had
done so, and that he would give Hegarty two unbranded ones
if his (Hegarty's) brand was found on the heifer, together with
his (Kelly's). Hegarty's ownership of the heifer was also sworn
to by John Quinlan, farmer, Gowrie Creek, and John Curtis,
farmer, below the Range.
For the defence, evidence was adduced to show that the heifer
in dispute was remarkably like one possessed by the defendant,
.and that Hegarty's brand was very faint and dim. Robert
Macarthy, who was frequently in the defendant's employment
•during the last seven years, swore that he had assisted Kelly
in putting his registered brand, on the cow eight months ago,
and also his ear-mark. At that time no former brand was to be
seen on the heifer.
Hely stated that the information was laid under s. 27 of The
Brands Act, which enacted that " If any person shall wilfully
brand any stock of which he is not the rightful owner or shall
wUfuUy cause direct or permit any stock of which he is not the
owner to be branded with his brand such person shall on con-
viction for every such offence in a summary way forfeit and pay
any sum not exceeding £50." The Magistrate had exceeded his
jurisdiction, as the evidence clearly showed that the defendant
had not wilfully branded the heifer, knowing her to be not his
own, for he had really believed her to be his property. The
word " wilfully " meant intentionally and with premeditation.
If there were any offence at all committed by the defendant it
was against s. 28 of the Act, and not s. 27. Section 28 enacted
" That any person who shall wilfully blotch deface or otherwise
render illegible or alter any brand or mark upon stock or permit
any such brand or mark to be blotched defaced or otherwise
so QUEENSLAND JUSTICE OF THE PEACE.
E. V. Keixt. rendered illegible or shall wilfully cause direct or permit any
stock to be marked on the ear or dewlap shall on conviction
for every such offence forfeit and pay any sum not exceeding
£20 for every head of stock " so treated. The brand of the defend-
ant, it was sworn, was put on over Hegarty's No. 2, and also
the defendant's ear-mark was put over the plaintiff's. The
evidence did not therefore support the information, inasmuch as it
was laid under the wrong section ; and furthermore, the defend-
ant was fined £30, whereas the highest penalty allowed by s. 28
was £20. Again, s. 35 provided that for the purpose of any
prosecution or action under this Act, any registered brand upon
any stock shall be prima facie evidence of the ownership of such
brand, and of the stock on which such brand is imprinted. It
was proved that Kelly's was the only registered brand on the
heifer, and according to this section that should be taken as
prima facie evidence that she belonged to him.
Lntwyehe J. Ltjtwyche J. : In the first place there was sufficient evidence
on the face of the depositions to show that the heifer belonged
to Hegarty, and also that Kelly had branded her with his brand.
As to the meaning of the word " wilful," it is hard to say what
was the state of the defendant's mind when he committed the
act, and the decision of that question must, I think, be left to
the Bench, once it was proved that the act had been committed
by him. Again, they had the defendant's statement to Hegarty
that the heifer was his (Kelly's) property, and that might be
taken as evidence of his wilful commission of the offence. As
to the registered brand being taken as prima facie evidence of
ownership, that applies in cases where it is necessary for the
support of a prosecution, but it is not to be used for the purpose of
evading a prosecution. Otherwise it would be offering a premium
for cattle-stealing, because any man could go and take a cow and
put his own registered brand over the old brand, and it would
then have to be held that the cow was prima facie his property.
Section 27 of the Act applies to all cattle, branded or unbranded,
and furthermore, it is not a sufficient defence to a prosecution
brought under that section, to say that the defendant had made
himself amenable to s. 28.* For these reasons the application
must be refused.
Solicitor for the applicant : Hamilton.
* See Curran v. Dowzer (2 Q.L.J. 45).
CEIMINAL REPOETS, 1860-1907.
81
BEGIN A V. PORTLEY.
[3 S.C.R. 202.— Note.— See also s. 628 of Ciimlnal Code.]
Criminal law — Practice — Illness of a juror — Discharge — 11 Vic,
No. 20, s. 23.*
When a juror has been taken ill and is unable to act, and either party objects to
a new juror being added in his place, the jurors must be discharged, and the cards
which bear the names of the jurors who have been discharged from giving a verdict
must be returned to the box, and a new jury must be drawn from the box, leaving
the Crown and the prisoner to exercise their right to challenge as before.
Crown Case Reserved.
The facts appear in the judgment.
Ltjtwyche J. : This matter comes before the Court upon a
case reserved from the last criminal Assize under the provisions
of the Act 13 Vic, No. 8 (Call. 1937). The information charged
the prisoner with stealing, while servant to Richard Gill, goods,
the property of her master. A large proportion of the 48 jurors
returned on the jury panel were challenged, several being desired
to stand aside by the Crown, while on the part of the {)risoner
the full number (20) of peremptory challenges allowed by law
in cases of felony were exhausted. A full jury having been at
length obtained, the trial proceeded, but while a witness was
beiQg examined for the defence, one of the jurymen was seized
with an epileptic fit, and was carried out of Court in a state
of insensibiUty. After some time had elapsed it was stated to
the Court by a surgeon who had attended the ailing juryman that
although he was somewhat better it was doubtful whether he
might not be visited by another fit if he were required to act as
a juror during that day, whereupon the judge of assize said he
was of opinion that the jury should be discharged from giving
a verdict, and the jury were so discharged accordingly. The
Crown Prosecutor suggested that, in order to save time, a new
juror might be added to the eleven who had heard the evidence
already given, and B. v. Edwards (Russ. & Ry. 234, 4 Taunt.
309, 13 R.R. 601), was cited. Mr. Blakeney, however, who
was counsel for the prisoner, refused to consent to this mode
of proceeding, unless accompanied by a renewal of her right of
peremptory challenge, which the judge refused to allow, and
ruled that the trial should proceed with a fresh juror added to
the original eleven, and that the prisoner's right of challenge
Supreme Court.
New South Wales,
Moreton Bay..
1859.
5th July.
Lutwyche J.
Lutwyche J.
* See now 31 Vic., No. 34, s. 22.
82
QUEENSLAND JUSTICE OF THE PEACE.
Regina v.
POBTLEY.
Lutwyehe J
should be confined to the person or persons called to complete
the jury. Another juror having been called, and having answered
to his name, he and the original eleven were all sworn, and the
prisoner was given in charge to them. After the new jury had
been impanelled they were locked up for the night in a room
at one of the principal hotels, and the trial was resumed on the
morning following, when, by consent of counsel on both sides (but
without waiving the objection to the disallowance of the right
of challenge) the evidence which had been given on the previous
day by the witnesses for the Crown was read over to each of them
by the judge from his notes, and each was asked, after having
been re-sworn, whether his evidence had been correctly taken
down, and whether his evidence was true. The trial then pro-
ceeded, and the prisoner was convicted. The question of law
for the opinion of the Court in Banco is, whether the prisoner
was rightly convicted, or whether there was a mis-trial under
the circumstances above set forth. Upon an examination of the
printed reports, it appears that the point raised by this case
has never yet been determined by a judicial decision of any of
the EngUsh courts. The practice, however, as might be inferred
from R. V. Beere (2 M. & Rob. 472) would be in favor of the general
right of challenge as claimed, but neither from that case nor
from R. V. Edwards (supra) can it be collected that the privilege
would have been allowed if the prisoner, as in the present instance,
had previously exhausted the full number of his peremptory
challenges ; on the contrary, it would rather seem from the
report of R. v. Edwards, in Taunton, that such a right would
have been denied by the Court, for Mr. Baron, Wood was there
of opinion that the opportunity for peremptory challenge had
gone by, and that the prisoner could only challenge for cause
shown. It is unnecessary, however, to dwell upon speculative
probabilities, because the Court thinks that the question is con-
cluded by the language of the colonial Jury Act, which was not
referred to at the trial (11 Vic, No. 20, Call. 1767). Section 23
enacts that upon calling for trial any criminal issue the clerk of
the Court shall in open court put pieces of card furnished by the
sheriff into a box, and shall draw out therefrom the said pieces
of card, one after the other, until twelve men shall appear without
just cause of challenge, which said men, being duly sworn, shall
be the jury to try such issue. It then provides that the pieces of
cards containing the names of the jurors so drawn and sworn as
aforesaid shall be kept apart by themselves until such jury shall
CRIMINAL REPORTS, 1860—1907.
8S
liave given in their verdict, or shall he discharged, and that then
the said 'pieces of card shall he returned to the hox, there to be k^t
with the other names remaining undrawn, and so toties quoties
so long as any issue remains to be tried. There is indeed an
additional proviso authorising the trial of any criminal issue
with the same or some of the same jury previously drawn to try
any other criminal issue. But it is to be noticed, in the first
place, that the jury which had been previously drawn was not
drawn to try any other issue than that joined between the Crown
and Bridget Portley ; and, secondly, that such a trial can only be
had where no objection is made on behalf of the Queen or any
other party. And as Mr. Blakeney did not object to try the issue
joined between the Crown and the prisoner, except upon conditions
which the judge of assize had no power to grant, the Court is of
opinion for both of these reasons, that the course of proceeding
adopted at the trial was irregular, and that as a mistrial has con-
sequently taken place, a new trial must be granted. The practice
which must be observed in future in similar cases wiU be to return
to the box the cards which bear the names of the jurors who have
been discharged from giving a verdict, and to draw from the box
a new jury, leaving the Crown and the prisoner to exercise their
right of challenge as before.
Regin^ V,
PoRTLIiY.
Lutwyehe J.
[In Banco.]
REGINA V. HOSKINGS.
[4 S.C.R. 24.— Note.— See s. 350 of Criminal Code, and R. v. Schloss and Maguire
(8 Q.L.3. 21, post).]
Indecent assault — Evidence of non-consent — Witness.
On a charge of indecent assault, evidence of want of consent ought to be given,
but where it is shown that the person assaulted is incapable of giving consent, it is
not necessary to call such person as a witness.
Cbown Case Reserved by C. H. Blakeney, Judge of the
Western District Court at Dalby.
The prisoner, WilUam Hoskings, was tried at Dalby for com-
mitting an indecent assault upon a girl, aged sixteen, named
Jane Howe, on October 25th last. The girl Hved with her
mother, and had been left by her, on the day in question, in the
kitchen of their house. On returning in about an hour she
found the prisoner in the act of committing the offence for which
1873
8th December
Cockle G.J.
Lvtwyche J.
84 QUEENSLAND JUSTICE OF THE PEACE.
Kegina r. ]^g jja^^ been tried. On seeing her he immediately ran away :
Hof KINGS. ° ■' "■
but she gave information to the pohce, and he was arrested
the following day and identified by her. Upon his arrest by
Constable Brady he was told the charge against him, and
he then said he had not done anything but what he had paid for.
Dr. Howlin, a medical man, swore that the girl had been under
his care for a very long period ; that she was subject to epileptic
fits ; was of a very weak intellect, and he did not think that she
was capable of consenting or resisting the cornmission of the
offence. In his opinion, however, she was capable of appreciating
the difference between truth and falsehood. Mr: Chubb, the
solicitor for the prisoner, asked the Judge to withdraw the case
from the jury, on the ground that there was no evidence of
want of consent. This he refused to do, and, in his summing
up, told the jury that if the prisoner exposed the person of Jane
Howe it was sufficient to sustain the information. On the
question of consent, the jury received no direction, the Judge
holding that that was a point of law. Mr, Chubb objected
to the Judge's summing up ; first, because the jury were not
told to acquit the prisoner on the ground of want of consent not
being proved ; and, also, because Jane Howe was not called,
she being a competent witness. The questions reserved for the
consideration of the Court were — (I) Was the Judge right in
refusing to withdraw the case from the jury on the point raised
by the defendant's advocate ; (2) was the Judge right in refusing
to direct the jury to acquit the defendant on the ground that
there was no evidence that the assault was committed against
the consent of Jane Howe ; (3) ought the Judge to have directed
the jury upon the points and in the manner stated by the
defendant's advocate in his objections to the directions ?
Pring Q.C., for the prisoner : There must be some evidence
of want of consent. {R. v. Johnson, L. & C. 632). There is a
distinction between carnal knowledge and indecent assault in a
case of a girl under twelve years of age. {R. v. Fletcher, 1 C.C.R.
39; R. V. Beale, 1 C.C.R. 10).
Hely, for the Crown, argued that submission was not consent.
(R. V. Fletcher, 1 Bell 63 ; R. v. Lock, 2 C.C.R. 10). Here there
was evidence of weakness of intellect, some evidence of violence,
and the prisoner was a stranger. If there is no consent, and the
act is wrong, there is an assault. {R. v. Williams, 8 C. & P. 286 ;
R. V. Day, 9 C. & P. 722 ; R. v. Case, 1 Den. C.C. 580 ; R. v. Nichoh
R. & R. 130.)
CRIMINAL REPORTS, 1860—1907.
85
Pring, in reply. There might be such submission as implies Reoina «.
consent, and the circumstances pointed to that having been its
character in this case.
Cockle C.J. : It is no doubt competent for us to send back Cockle C.J.
'the case to be amended, a proceeding which we should adopt in
any case in which we thought it essential to the ends of justice ;
but here the substantial question is, whether there was any
evidence to go to the jury, and, as on that substantial point
we are against the prisoner, we do not think it necessary to send
the case back for amendment. Still less do we think it necessary
to criticise an isolated passage in the summing up, which, regarded
in connection with the whole of the Judge's observations, or
with the whole proceedings of the trial, might bear a different
interpretation to that which, at the first glance, it seems to bear.
We prefer looking at the points stated in the case for our con-
sideration, and confining ourselves to the questions raised by
those points. The learned Judge was called upon to withdraw
the case from the jury, which he refused, and, we think, quite
rightly refused to do. The specific grounds of objection to the
Judge's direction which followed were three in number — (1) That
the learned Judge should have directed an acquittal on the ground
that there was no evidence that the assault was committed
against the consent of Jane Howe. However valid such objection
might be in the ordinary run of cases, yet here we must remember
that there was evidence, with which it was for the jury to deal,
that the assaulted woman was a being incapable of giving consent,
and consequently the direction which the advocate for the prisoner
called upon the learned Judge to give was something equivalent
to this — that if the act was done against her consent, or that
if she was a person incapable of consenting, and that this was
an indecent, forcible, and wrongful act done upon her without
consent, then the jury might convict. What the learned Judge
was called upon to do was to regard the first branch of this
alternative, and to disregard the latter altogether. Consequently,
we think that in this particular case, in which there was evidence
of incapacity to consent had the Judge simply directed as he
was called upon to do, the jury would have been thereby misled
and the ends of justice would not have been advanced. The
second point was that he had omitted to direct the jury that
Jane Howe was a competent witness, and ought to have been
produced by the Crown to negative the presumption of consent.
Obviously here we think there was no duty incumbent upon the
QUEENSLAND JUSTICE OF THE PEACE.
Begina v.
hoskinos.
Cockle C.J.
Lutwyche J
Judge to give any such direction to the jury. The caUing or
non-calling of a witness either on behalf of the Crown or the
prisoner is a matter for observation only. There is the point
that the learned Judge ought to have directed the jury that they
must be satisfied that the assault was committed against the
consent of Jane Howe. This would have been a very proper
call to make upon the Judge had there been no evidence to show
she was incapable of giving consent. With regard to the three
points reserved for our consideration, I think we must determine
them against the prisoner. We think the learned Judge was
right under the pecuhar circumstances of the case in refusing to
withdraw the case from the jury on the point raised by the
defendant's advocate. He was also right, in our opinion, in
refusing to direct an acquittal on the ground that there was
no evidence that the assault was committed against the consent
of Jane Howe. If she were incapable of giving consent, there
was, in our opinion, a wrongful, forcible, and indecent act com-
mitted against her. I am therefore of opinion that the conviction
ought to be affirmed.
Lutwyche J. : I am of the same opinion. With reference to
the second direction, it has not been argued by the learned
counsel for the prisoner, but I, nevertheless, think it right to
express a strong opinion, that the learned Judge acted perfectly
right in not directing the jury that Jane Howe was a competent
witness, and ought to have been called by the Crown to rebut
the presumption of consent. I can easily understand the reason
that induced the learned counsel, who conducted the prosecution
on behalf of the Crown, to abstain from calling her. He might
have thought that it would imperil the case and defeat the ends
of justice, and knowing, as he did, that it laid him open to obser-
vation on the part of the advocate of the prisoner, and also to
observation, but observation only, on the part of the learned _
Judge, I think he exercised a very wise discretion in abstaining
from calKng her as a witness. I also think that the learned
Judge acted perfectly right in not directing the jury that she
ought to have been called to negative the presumption of consent,
for such presumption did not arise upon the evidence, if, as the
case went to show, she was incapable of consenting. I believe
that in ordinary cases evidence of want of consent ought to be
given ; but where it is shown that the person assaulted has no
will to exercise, and is, therefore, incapable of giving consent,
then I think it is quite sufficient to leave the case to the jury
CRIMINAL REPORTS, 1860-1907.
87
upon that evidence. That view has certainly been upheld in
all the cases quoted, except in the case of R. v. Loch, in which
Mr. Justice Brett rather qualified it. We say there was evidence
to show the incapacity to consent, and that might, therefore,
go to the jury as evidence of the act of assault. That appears to
me to be the true distinction, and reconciles all the cases which
have been brought before the Court. I also think that the
conviction ought to be confirmed.
Eeoina v.
hoskinos.
Lutwyohe J.
[In Banco.]
LONG V. RAWLINS.
[4 S.C.R. 86.]
Assault — Right to enter a church — Public worship — Trespass.
A person claiming to be a member of the Baptist Church wag prevented from
entering the church on a Sunday by one L., acting under instructions. A majority
of the Bench found L. guilty of assault, fined him, and placed on record their
opinion that the plaintiff, as one of the public, had a right to enter the church in
question.
Held, without deciding whether the complainant had a right to enter the church,
that there was evidence to support the conviction.
Semble, that the question whether a member of the public has a right to enter a
church for worship depends upon the rules of the church and its trust deed.
If a man be a trespasser, he can be sued for trespass in a court of competent
jurisdiction. He should receive notice to leave before he is ejected.*
Motion to make absolute an order nisi calling upon F. Rawlins,
Police Magistrate, and other Justices of the Peace, and Wilham
Langley, to show cause why the conviction against John Long for
assault should not be quashed, on the ground that the opinion and
decision of the majority of the Bench, and the conviction founded
thereon, was erroneous and contrary to law.
The complainant, WiUiam Langley, summoned John Long for an
assault, in an attempt to prevent his entrance to the Wharf Street
Baptist Church. Langley, in his evidence, stated that he was a
member of the Baptist Church. On Sunday, the 26th of April, as
he was walking up from the entrance gate to the building, the
defendant came to him, and, in a most ferocious manner, laid
hold of him, saying, " Did I not tell you not to come in here ? "
1874.
6th August.
Cockle C.J.
Lilley J.
Sheppard J.
*See Criminal Code, s. 207.
88 QUEENSLAND JUSTICE OP THE PEACE.
Long v. RiWLiNs. flg did not actually strike complainant, but began pulling and
tearing his clothes. The complainant offered no resistance,
and did not retaliate in any way. Whilst he was adjusting his
clothing the defendant went on very violently, saying that he
would murder the complainant but for the people about. He
gave no reason for his conduct. In cross-examination the
complainant admitted that he had been informed by letter that
he had ceased to be a member of the church, and three Sundays
before that he was forbidden to go into the church. The violence
arose out of the assertion by him of his right to enter the church.
James Swan, a senior deacon and one of the trustees, swore
that the doors of the church were thrown open on Sundays for
public worship, but could be closed if the church chose. They
were thrown open to the members in particular, but also to the
public if they behaved themselves. There were no pew rents or
registered sittings in the church, and the seats were in a manner
free. The defendant was stationed at the gate by the authority
of the church. A meeting was held, at which it was decided
to keep out the complainant as a disturber. It was necessary
to keep him out for the sake of common decency and propriety,
as his presence completely obstructed pubhc worship, and inter-
fered with the ceremony carried out by the pastor.
WilUam Moore, another trustee of the church, swore that he
would not interfere with anybody going into church to attend
public worship, and if a person were expelled the society, he
would not be interfered with attending the congregation meeting ;
but, if a person misbehaved himself whilst there, he would have
him put out. Henry George Cray, one of the deacons, swore
that he had noticed, on several occasions, the complainant's
conduct to be disorderly in the church. He was pertinaciously so,
and in defiance of remonstrance.
The majority of the Bench decided that the complainant had
a right, as one of the public, to enter the church in question, and
fined the defendant £2 and costs, or in default seven days' im-
prisonment. The Police Magistrate and one of the Justices
dissented.
Griffith A.G. and Pring Q.C. moved the rule absolute.
Blake Q.C. and Harding for Langley showed cause. The com-
plainant had a perfect right, as one of the public, to enter the
church, even if he was not a member. There was evidence that
other persons could go to the church, and nothing had to be done
previously to entitle them to admission. If Langley misconducted
CRIMINAL REPORTS, 1860-1907. 89
himself in the building, there was power to remove him. [Lillby ^°^'^ "• Rawlins.
J. By the trust deed the church is apparently limited to a par-
ticular society, now and hereafter assembling therein. It appears
to me the question of complainant's right of entrance does not
arise. This is a conviction for assault, and we have to say if
there was sufficient evidence to sustain it. There was nothing
to show Langley meant to interrupt.] Williams v. Glenister
{2 B. & C. 699, 4 D. & R. 217) ; Polkinhorn v. Wright (8 Q.B.
197 (206) ; Byerly v. Windus (5 B. & C. 1) ; Mainwaring v. Giles
(5 B. & A. 356) ; Lang v. Purves (8 Jur. (N.S.) 523, 10 W.R.
468, 15 Moo. B.C. 89) ; Wood v. Leadhitter (13 M. & W. 838) ;
and Detcham v. Bond (3 Camp. 524) were cited.
Griffith A.G. : If there was no right on the part of Langley to
enter, there was no evidence to show that any excess of violence
had been used in ejecting him.
Cockle C.J. : Some questions of importance were probably Cockle C.J.
intended to be raised, but are not raised by this order nisi, which
seeks a prohibition on the ground that the opinion and decision
of the majority of the Bench, and the conviction founded thereon,
was erroneous and contrary to law. Now, I think that this
Court ought not to disturb a decision simply on the suggestion
that it had proceeded on wrong grounds. So far as I understand
the entry of the proceedings, the opinion and decision not only
of the majority of the Bench, but of the whole Bench, was that
an assault had been committed, and that the conviction was
founded thereon. I can hardly say that the conviction was
erroneous and contrary to law, because, whether Langley was
or was not a trespasser at the time of the committal of the
alleged assault and battery, still there is evidence which the
magistrates may have believed, and on which they may have
acted, that more violence was used than the law would justify
on such an occasion. Moreover, it does not appear by necessary
implication that the conviction was founded upon this opinion,
of which so much use has been made in the course of the case.
The entry is : "A majority of the Bench are of opinion that the
plaintiff had a right, as one of the pubhc, to enter the church in
question." The reason for the insertion of these words — which
appear to have been put in on the suggestion of the learned
counsel for the defendant, the plaintiff not being represented by
counsel — might have been as suggested by my brother Lilley,
for sake of peace, or with the object of promoting an understanding
between the parties, or with the view of explaining why a merely
90
QUEENSLAND JUSTICE OF THE PEACE.
Long v. Bawlins. nominal penalty was not inflicted. That it was fixed at 40s,
Cockle C.J. was because they believed there was an infraction of a substantial
right. But it was a question which did not come before the
Court in a way enabling us to answer, and it would be going too
far for us to say that the decision of the Bench supported by
evidence should be disturbed because the magistrates had put
an opinion on the record which they could not say was purely law,
or one of mixed law and fact. For these reasons I think the
order must be discharged.
Lilley J. LiLLEY J. : I agree with the judgment which the learned Chief
Justice has dehvered that this order must be discharged, and I
think also with costs. We have nothing before us to enable us to
come to the determination that this opinion was the sole ground
for the magistrate's decision. Neither do I think have we
materials before us, even if they were so, to enable us to say that
their decision was actually wrong. There was some evidence from
which the Justices might infer — the evidence of Messrs. Moore
and Swan — that the rules of the society, for whose benefit this
trust deed was executed, entitled the public, under certain,
conditions, to enter that building for public worship. They
might, therefore, have come to that conclusion. It is impossible
for us to say whether they were right or wrong on the materials
before us. It is, moreover, wholly immaterial in this matter.
I will assume that the chapel being opened an invitation is
given to the general public to enter and worship. I will asume,
further, that they have power to say to any one individual in the
community, " All others may enter, but you are excluded from
that invitation." Yet, if a man presents himself, as Langley did,
is there a right to seize him, even if it is admitted that he was a
trespasser, and by threat and assault drive him back. I certainly
think not. I think we must hold, if it were only for the preserva-
tion of the public peace, that a warning must be given. For all
Long knew, Langley might have been going on an errand of
peace, because it was unknown to him that he was simply
asserting his right to enter. It would be a most dangerous thing
to hold that a man can assault a trespasser without previously
telling him to withdraw. My opinion is, on the evidence before
us, that the conviction was right. No doubt the parties wish
this question determined upon which the magistrates gave an
opinion, namely, whether one of the public has a right to go into
a church for the purpose of worship ; but that depends to a great
extent upon the rules of the society and the trust deed, which
CRIMINAL EEPORTS, 1860-1907. 91
do not appear before us. Neither do I think that this is the Lono v. Bawmnb.
proper way of bringing the point forward for a decision. If a Lilley J.
man be a trespasser let him be sued for trespass, and let the
question be determined by a Court of competent jurisdiction.
Sheppard J. ; I also agree with the decision. With regard Sheppard J.
to the right of the public to enter a church, the Magistrates have
given an opinion which probably they would have been glad to
have decided by this Court, but it is not necessary for the decision
of this case, and it does not seem to me that we are called upon
to give an opinion on a point on which a good deal can be said
for and against, and which is one of very great importance.
As to the costs, I behave Lord Wensleydale's dictum is the
correct one, that costs must not be imposed either as a punish-
ment or a penalty, but must follow as a consequence of unsuccessful
litigation.
Order discharged with costs.
SoHcitor for complainant : T. Bunton.
Sohcitors for appellant : Macalister cfc Mein.
[In Insolvency.]
In re LONG.
[4 S.C.R. 120.— Note.— Sections 208 and 216 ol 38 Vic., No. 5, are repealed, see now
ss. 530 and 698 o( Ciimiaal Code.]
The Insolvency Act of 1874 (38 Vic, No. 5), ss. 114, 208 (2), 216— 1875.
Committal of debtor for trial after examination under s. 114 — 28th May.
Transfer with intent to defraud. Lilley J.
Before exercising tlie power of committal of an insolvent under s. 216 of The
Insolvency Act of 1874, the Court must be satisfied that such a case has been made
out as would, if not broken down or answered by counter-evidence, justify a
probability of the insolvent's conviction by a jury.
Motion by the oflScial trustee for the committal of John Long ,
an insolvent, for trial for an offence against The Insolvency Act
of 1874.
At an examination of the insolvent under s. 114 he stated that
he had transferred certain land a few days before his adjudication,
having purchased the property with his sister's money. The
insolvent's brother had since, in the insolvent's presence, handed
92 QUEENSLAND JU&TICE OF THE PEACE.
In re LoNo. the transfer to the official trustee. All the other necessary facts
appear in the judgment.
Pring Q.C., for the official trustee, appUed under s. 216 for the
committal of the insolvent for trial for an offence against The
Insolvency Act of 1874. He referred to ss. 208 (2) and 216 of
the Act 38 Vic, No. 5.
Thynne for the insolvent.
Lilley J. LiLLEY J. : I think the power I am called upon to exercise is a
very summary one. Were I at once to commit the insolvent for
trial, he would, under this peculiarly-worded section, go from
this jurisdiction under the disadvantage of a preliminary judgment,
because the section states that should it appear to the Court that
the insolvent is guilty of the offence. I take it that what ought
to have been the wording of the statute — and what no doubt was
the intention of the Legislature — is that the Court should have
the power to commit the insolvent if a prima facie case shall appear
to have been made out against him after his examination. I shall,
therefore, in the first instance, before I can exercise such a power,
have to be satisfied that such a case has been made out as would,
if not broken down or answered by counter-evidence, justify
a probabiUty of the insolvent's conviction by a jury. The only
portion of the case which it seems to me has been proved against
the insolvent is the purchase and conveyance to his brother,
Daniel Long, of a cottage at Warwick. I now have only the
insolvent's own statement. Whatever may be the truth or
falsehood of that statement I have not to consider, but what will
be the probability of a jury convicting upon it. In the first
place the insolvent said he bought the property with the money
of his sister. The question arose whether he was acting for her
or her husband, if she were married ; but upon this subject the
Court is in the dark. It was said that the allegation concerning
the sister was false, and for this reason, that he transferred the
property to his brother after he had been served with a writ by
one of his creditors. That as it stands, if supported by some
other evidence, might have great weight with a jury. Then
there is the circumstance that the brother has in his presence
surrendered the transfer to the official trustee. I must say
there is a case of suspicion, and perhaps there is sufficient evidence
to justify me in holding him to bail to appear before a Justice of
the Peace, a course which, if strongly pressed, I will follow. At
the same time I may point out, if any additional evidence can be
CRIMINAL EEPORTS, 1860-1907.
9»
obtained, the insolvent can, at any time, be summoned before a
magistrate to answer for the offence, without the Court now
binding him over.
Pring Q.C. : 1 will not press for the insolvent to be bound over,
as I am not quite sure whether the additional evidence can be
obtained.
Solicitor for official trustee : Wilson.
In re Lono.
LiUey J.
[In Banco.]
R. V. JIMMY.*
[4 S.C.R. 130 ; 7 Q.L.J. N.C. 106.— Note.— R. v. Gomez, cited in footnote, was
reported in 5 S.C.R. 189, and is reprinted herein, post.]
Criminal Law — Piracy — Jurisdiction — Territorial waters — 7 Wm.
IV. and 1 Vic, c. 88, s. 2—12 and 13 Vic, c 96, s. 3.
A prisoner was charged with piracy on «, vessel lying within a line drawn from
one headland to another on the coast of Queensland, and between the mainland
and an island which had been annexed by that colony by proclamation.
Hdd, that the locus in quo of the alleged offence was within the territorial juris ■
diction of the colony, and therefore subject to the municipal law of the colony, and
that no act of piracy could be there committed.
Crown Case Reserved by Sheppard J.
Jimmy, an aboriginal, was tried at Townsville, on May 26th,
before Sheppard J. The first count of the information charged
the prisoner with having, on 9th June, 1874, with force and arms,
and upon the high seas, and on board the schooner " Albert
Edward," then lying in Challenger Bay, distant about three
leagues from the coast of the colony, piratically, unlawfully,
maliciously assaulted and wounded, with intent to murder,
Robert Mackay and Donald Henderson, for the purpose of enabling
him to steal the said vessel and her cargo.
The information was laid under s. 2 of 7 Wm. IV. and 1 Vic,
0. 88 (Pain & Woolcock's Statutes, 3138). The Crown Prosecutor,
at the instance of the Judge, elected to proceed in respect of the
wounding of Henderson. It appeared that the schooner, of
which Mackay was master, was sailing under the British flag,
and at the time of the commission of the offence alleged was lying
1875.
i!4th September.
Cockle C.J.
Lutwyche J.
Lilley J.
Sheppard J.
*E. V. Gomez (reported in Brisbane Courier), 1st June, 1880.
Code, ss. 81-82.
But see Criminal
94
QUEENSLAND JUSTICE OF THE PEACE.
B. V. JiMMT. jn Challenger Bay, off Palm Island, inside an imaginary line
drawn from one headland of the bay to another, and distant from
the island from a quarter to half-a-mile. There were from three
to four fathoms of water at the spot where the ship was lying,
and it was beyond low water mark. There was also another
island between Palm Island and the mainland, with a passage
between, through which any vessel could go. The vessel waB
lying on the mainland side of the island, and the mainland could
be seen from her deck. A proclamation in the Government
Gazette, annexing the islands within sixty miles of the coast, was
put in evidence ; and the Judge directed the jury that, although
the proclamation had the effect of making the island in question
a portion of the Colony of Queensland, it did not so constitute
it a part of the colony in the sense that, within a line drawn from
one headland to another of Challenger Bay, the crime of piracy
could not be committed, and he directed the jury that the vessel
■was in such a position that, in point of law, the crime of piracy
could be committed : but entertaining some doubts as to whether
in point of law, the proclamation had not the effect of rendering
Palm Island a portion of the " district or country " from which
it was divided by the sea, and whether the ship was not within
the " body " of the country or district, the Judge reserved for the
consideration of the Judges in Banco the question whether,
on the evidence, the ship was in such a situation that, in point of
law, the crime of piracy could be committed. The prisoner
was found guilty, and sentenced to death.
Griffith A.G., for the Crown, referred to 1 RusseU on Crimes (1865
Ed., p. 153), R. V. Cunningham (Bell C.C. 72), R. v. Bruce (K. & R.
243), R. V. Anderson (L.R. 1 C.C.R. 161), R. v. Mannion (2 Cox
C.C. 158), R. V. Curling (R. & R. 123), and the statutes 8 Geo. I.,
c. 24, s. 1, 18 Geo. II., c. 30, 39 Geo. III., e. 37, 46 Geo. III., c. 54,
12 and 13 Vic, c. 96, s. 3 ; 7 Wm. IV. and 1 Vic, c 88 ; Bacon's
Abridgement (Piracy), and Comyn's Digest (Admiralty) E. 3, 14).
Blake Q.C. for the prisoner.
Cockle C.J. Cockle C.J. : I think this conviction cannot be upheld without
going in the face of a statement made in Comyn, on the authority
of Bulstrode. It is there stated that "it is not piracy if the
attempt was made within a creek, port .... for that
would be a felony triable at common law." Now, tha scene of
the alleged piracy forms part of this colony — or, at any rate
was -within the " body " of the colony — for the island in question
CRIMINAL REPORTS, 1860-1907.
95
has been annexed by proclamation, and the locus in quo being
within a Une drawn from headland to headland was within the
jaws of the land. In annexing the island, this country must be
taken to have thrown over that island the protection of the
common law. It is not necessary to say whether the jurisdiction
of the Admiralty will or will not be excluded, because it by no
means follows from the fact that there is a concurrent jurisdiction
possessed by the common law and the Admiralty, that the offence
set out here is necessarily a piracy. There might be a concurrency
of jurisdiction by which the Admiralty could deal with alleged
offences occurring under the cognisance of the common law,
but it is not necessarily to be imphed that when jurisdiction
is concurrent, that means that the Admiralty is to deal with the
offence in one way, and the common law in another, and by such
a course of proceedings arrive at different results. Therefore,
as in the present case the locus in quo is within the municipal
law of the country, I am of opinion that the prisoner is innocent,
at aU events from piracy, and consequently the conviction must
be quashed.
LuTWYCHE, LiLLEY and Sheppabd JJ. concurred.
Conviction quashed.
Solicitor for prisoner : — Norris.
R. V. Jimmy.
Cookie C.J.
[In Banco.]
R. V. KING.
[4 S.C.R. 144; 1 Q.Ii.R. Pt. I., p. 73.— Note.— S. 207 of 38 Vic, No. 5, is repealed,
see now s. 519 of Criminal Code to like effect.]
Insolvency Act of 1874 (38 Vic, No. 5), ss. 43, 70, 115, 207, r. 38—
Debtor'' s petition — Verification of by affidavit — Examination of
debtor — Answers to questions — Admissibility of answers on
subsequent trial of debtor on criminal charge.
A debtor's petition for adjudication under s. 43 of the Act 38 Vic, No. 5, need
not be verified by affidavit.
The provision in s. 115 of The Insolvency Act of 1874 " that no question put to
any insolvent on any examination under this Act shall be deemed unlawful by
reason only that the answer thereof may expose him to punishment in respect of
some one or more acts or things made punishable as misdemeanors," does not
operate to render inadmissible on a subsequent trial of the insolvent for a crime,
statements made by him on an examination under s. 114 of the Act.
1876.
11th and 14th
Febritary.
Cockle O.J.
Lutwyche J,
Lilley J.
Sheppard J,
96 QUEENSLAND JUSTICE OF THE PEACE.
E. V. Kino. Senible, however, that an insolvent may refuse on such an examination to answer
any question which may expose him to punishmeiit on a criminal charge.
Ceown Case Rbseeved by Lutwyche J. on the trial of
John Campbell King for fraudulent insolvency.
The prisoner was tried before Lutwyche J. on a charge of
fraudulent insolvency in trying to leave the colony, taking with
him certain property which should have been divided among his
creditors. The adjudication of the insolvent was proved by the
production of the Gazette containing the adjudication, but counsel
for the prisoner objected to proof in that form, and also to the
adjudication itself, as having been made upon the petition of the
insolvent, which petition was not verified or supported by affidavit
as required by r. 38 of the Insolvency Rules. Evidence was
tendered of admissions made by the prisoner on his examination
under s. 114 of the Act, and objection was taken by counsel for the
prisoner to this evidence, he relying upon s. 115 of the Act,
Lutwyche J. admitted the evidence, but stated a case, reserving
for consideration of the Court in Banco the questions of the
admissibility of such evidence and of the proof of and validity of
the adjudication of the prisoner as an insolvent.
Blake Q.C. and Real, for the prisoner, withdrew the objection
that the orders published in the Government Gazette were not
conclusive evidence of adjudication on the authority of R. v.
Levi (L. & C. 597), and admitted that the question related to
property.
Griffith A.G. and Beor, for the Crown, cited Ex parte Cossens
(Buck. 531), Ex parte Kirhy (Mon. & McAr. 212), R. v. Shggdt
(Dears. 656), R. v. Coote (L.R. 4 P.C. 599), R. v. Cross (Dears.
& B. 68).
Blahe Q.C, in reply. Section 115 limits s. 114.
C.A.V.
February 14, 1876.
Cockle C.J. Cockle C.J. : In this case, the prisoner was indicted for a felony
under s. 207 of the Act, and an adjudication was offered in evidence
and objected to on the grounds that the petition was not supported
by affidavit. The petition was a debtor's petition, which, under
s. 43 of the Act, may serve as the basis of an adjudication upon
due proof, which does not, as I understand the Act, mean neces-
sarily proof by affidavit. The Court may be satisfied by other
matter — by attestation, for instance. It has been said that under
r. 38, it is necessary that there should be an affidavit ; but that
CRIMINAL REPORTS, 1860-1907. 97
rule does not, it seems to me, apply where there has been a pro- ^' - '•^™°-
vision made in the Act itself for proceedings on petition, or even Cockle C J
if it did apply, it would possibly be competent for the Judge
exercising the discretion given him by the rule to be satisfied
without such proof ; and moreover s. 70 of The Insolvency Act,
by providing that the Gazette shall be conclusive evidence of the
adjudication, seems to show the inchnation of the Legislature
to destroy any such objection as that made to the admissibility
of the adjudication. I think, therefore, there is nothing whatever
in this point, and I now proceed to the objection raised under s.
115 of the Act. Now, as far as I am concerned, I have the
greatest difficulty in assigning any meaning to this section, or
to conjecture what could have been its purpose. Interpreted
it cannot be by the marginal note ; but even between section
and note there seems to be a conflict. For the margination
treats the Legislature as referring to answers and to the nature of
answers, whether criminating or not, while at the first glance the
section seems to refer to questions, and provides that certain ques-
tions shall not be unlawful, and by implication that certain other
questions are to be. " No question put to any insolvent upon any
examination under this Act shall be deemed to be unlawful," are
words which at first sight would seem to imply that the Legislature
had misconceived the Common Law, and supposed that any such
question, unless it be put to an insolvent actually upon his trial,
and put judicially by the Judge from the Bench, would be unlawful.
As I understand it, the Common Law is not that such a question
cannot be put, but simply that the person may refuse to answer.
Assuming for a moment — which I do not assume, and, in fact, I
think the assumption ought not to be hastily indulged in — that .
this clause is based upon misconception of the Common Law, I
think it would be extremely dangerous for us to travel into the
regions of conjecture, as we should were we to pronounce on the
effect of that misconception. It has been contended here that
the omission of the words " or felonies " at the end of the section
shows an intention on the part of the Legislature that questions
which in respect to misdemeanours would not be unlawful would
be in respect to felonies. It is a possible interpretation to
put on the Act, but it is not perfectly clear to me why a contrast
is to be drawn between misdemeanours and felonies at Common
Law and those under other Acts. It is more probable that the
words should have been omitted, but it is equally probable
that it was intended to draw a distinction. It would be very
98
QUEENSLAND JUSTICE OP THE PEACE.
U. V. King. unsafe indeed to base a judgment upon conjecture. I prefer,
GoekleC.J. therefore, one or two other interpretations, namely— in using
this phrase, the Legislature merely meant that the question need
not be answered, not to deprive the Judges or parties of the
opportunities of discovery offered by putting the question, but
simply that an unlawful question need not be answered. That,
certainly, would seem to be the view taken by the Legislature in
the 22nd section of 7 Vic, No. 19, which Mr. Justice Sheppard
has kindly furnished us with, and which, after reciting that
" if any insolvent shall refuse to answer any lawful question,"
goes on to enact that " After the passing of this Act no question
shall be deemed unlawful by reason only that the answer might
criminate him." Thus fortified with the expression of the New
South Wales Legislature, of which this colony then formed a
part, I see less difficulty in coming to the conclusion that ho
question shall be deemed unlawful by reason only that the answer
may expose him to punishment, has reference to the old state
of the law, and by " unlawful," the Legislature meant questions
to which an answer might be refused. If that be the interpreta-
tion, of course this conviction must be affirmed, because it is
expressly stated on the face of the case that the prisoner did not
object to answer the questions put to him. I may add that it has .
occurred to me that another interpretation may be put on these
words, that they may have crept into the clause this way — that the
Legislature had intended to enact that certain questions should be
unlawful, they might have intended that a question intending to
convict of these felonies should not be lawful. If that be so, cer-
tainly there is no express enactment in the Act that any particular
question shall be unlawful, and if the Legislature have carried
out that part of their intention, it is only by impHcation so
remote that it would not be safe to base any arguments upon it.
The conviction wiU have to be affirmed.
Lutwyche J. LxJTWYCHE J. : I also think the conviction ought to be affirmed.
It appears to me that there is no weight in one point which was
argued at the bar on Friday last. I think the orders of adjudica-
tion in both cases, in respect of King and Redmond, and in respect
of Redmond, were both good, although the petitions were not
verified by affidavit. Rule 38 appears to me to apply to motions
only, and the absence of the word " affidavit," when the words
" due proof " are used in the 43rd section, leads me to tha
conclusion that it was not intended to require an affidavit in the
case of a debtor's petition, while in the 52nd section we have
CRIMINAL REPORTS, 1860-1907. 99
an express provision that the creditor's petition — then being ^- *^™*
Tinder the notice of the Legislature — that the petition of the Lntwyche J.
creditor shall be verified by the oath of the petitioner.
Then with regard to the second and more important point raised
by the language of the 115th section of the Act, I agree with the
■Chief Justice in thinking that the words " unlawful question "
mean a question that need not be answered ; and that being so,
if the question is put, and the insolvent decline to answer it,
and is nevertheless compelled to answer, I take it that in a
prosecution for felony founded upon evidence thus extorted from
him, he might possibly successfully object, if the question did not
relate to his deaUngs and property. I think it would be extremely
dangerous to hold that the law which was formerly in force, and
which is still in force, with regard to the answers given by the
insolvent, tending to criminate himself, when his dealings or
property are in question, should be so altered by implication
as to make it unlawful to put a question which might expose the
insolvent to a charge of felony. Mr. Justice CressweU, in a case
that came before him in the Common Pleas (Wansey v. Perkins,
7 Man. & Gr. 142), said — " It was a safe rule, in construing Acts
of Parliament, to look at the words of the Act, and construe
them in the ordinary meaning, unless such a construction would
lead to some manifest absurdity or injustice." Now, when
words are plain, and their construction is easy, by applying
the ordinary sense of the words to them, that should be done ; yet
if the result should be a manifest absurdity or injustice, courts are
then in a manner compelled to give them a different construction.
Surely, if by impUcation we are asked to do something which
would lead to both, we ought to be very cautious how to adopt
such a construction. And it seems to me that it would be mani-
festly absurd and unjust if we were to hold that a person might
be compelled to give an answer that would expose him to a
prosecution for a misdemeanour under this Act, while he was
protected from giving an answer which would subject him to a
prosecution for a graver offence. It would be holding out a
sort of premium to criminals to sin as much as they could, and
such a construction would certainly be unjust to the men who
are found to have committed acts which in the eyes of the law
are of lesser magnitude. After all, the distinction is, perhaps,
more technical than substantial, for the two felonies which are
mentioned in this Act seem to me to be substantially no more
contrary to morality and the aims of pubhc justice than many
100 QUEENSLAND JUSTICE OF THE PEACE.
R. V. King. other acts which are enumerated as acts of misdemeanour only,
Lutwjche J. On the whole, I think, wthout striving to point out the particular
object which the Legislature had in view, which it is not very
easy to discern, I think we shall, as far as we can judge, carry
out the intention of the Legislature by confining the operation
of the section to the words which appear in it.
LilleyJ. LiLLBY J. : Upon the first point raised, that the adjudication
was in effect bad, because the petition had not been supported
or proved by affidavit, I have come to the same conclusion as
the Chief Justice and Mr. Justice Lutwyche. The language of
the section is, that the adjudication shall be upon due proof,
and the Judge, who is the Court sitting to make the adjudication,
is to exercise a judicial function, and it is for him to decide whether
the evidence amounts to due proof, or to that sufficient degree of
proof, which would enable him to make the adjudication. Now,
I suppose that there can be no stronger proof than a man's own
admission that he is unable to meet his engagements and hable
to The Insolvency Act.
But then it is said that the judgment of the Judge is to be
measured by r. 38, that the rule prescribes that the proof shall be
an affidavit. But when we look to the language of that rule, it is
very doubtful, in the face of s. 33, which requires an adjudication
against a debtor to be made upon petition, whether the rule
applies at all. But then, if we admit that the rule does apply,
is it not in itself a sufficient answer to the objection ? Because
there, " All applications to the Court in the exercise of its primary
jurisdiction by virtue of the Act, shall (unless herein or in the Act
otherwise provided, or the Court shall in any particular case
otherwise permit) be by way of motion supported by affidavit."
Well, now, if the judge is satisfied and makes the adjudication
upon a petition without affidavit, it is the strongest proof that he
has permitted proof of another kind to be used — at all events,
due or sufficient proof. Upon that point, therefore, I think the
prisoner can have no advantage from the objection.
Then I come to the graver objection founded on the 115th
section which states that " No question put to any insolvent on
any examination under this Act shall be deemed unlawful by
reason only that the answer thereto may expose him to punishment
in respect of some one or more acts or things by this Act made
punishable as misdemeanors." I do not understand the members
of the Court who have delivered judgment before me to decide
that this is an impHed enactment, that any question put to an
CRIMINAL REPORTS, 1860-1907. /o \^\ \ \ 101
insolvent in his examination before an examining C^urV wliic& Bi^j^^m.
would tend to prove that he had been guilty of f elony%(ouJ(J ^e^'s^^yfiilley J.
unlawful, or that the insolvent could refuse to answer it.
not understand the members of the Court to have gone so far,
and I think, that whether the question tended to show that the
insolvent had been guilty of felony or misdemeanour, he is bound
under this statute to answer, and the evidence can be used against
him either for felony or misdemeanour. In considering this
115th section, we must have regard to the state of the law before
the enactment, or, rather, to the effects of the other portions of'
the statute. We must take it to be clear law since the Queen v.
Scott (1 Dears. & B. 47, 25 L.J. (M.C.) 128), which has been sanc-
tioned by our highest Court of Appeal — the Privy Council — that
where a statute requires an insolvent to answer questions touching
his trade deahngs and property, he must answer, even though the
answer expose him to a prosecution for felony. There were two
rules existing at the time this enactment was passed. The first
was the maxim " that no man should be held to accuse himself,"
and " that he should not be bound to answer any question to
criminate himself." When the statute required him to answer
touching his trade and dealings, it removed that privilege. Then
the effect of the case of the Queen v. Scott {swpra) was, not to go
further, to hold that the rule of the law of evidence was also
repealed — namely, that when a man has given his answer it may
be used in evidence against him. On the contrary, the effect of
the case is this : — If the answer is given by the force of the
statute, by the legal obligation of the man, it shall be received in
evidence against him, unless the statute has itself some express
enactment to the contrary. Therefore, when the statute com-
pelled him to answer, it compelled him to answer at his peril.
If the Legislature had intended that he should have any protec-
tion, it would have enacted it. But Mr. Blake argued with great
force that the 115th section, when it enacted that " No question
put to any insolvent on any examination under this Act shall be
deemed unlawful by reason only that the answer thereto may
expose him to punishment in respect of some one or more acts or
things by this Act made punishable as misdemeanors," impliedly
enacted that it should be unlawful to ask him any question which
would expose him to a prosecution for felony. I am unable
myself, I confess, to give such effect to the plain language of the
115th section. I cannot suppose it was based upon misconception
of the Common Law. I rather prefer to hmit it to the extent I
102 QUEENSL-AND JUSTICE OP THE PEACE,
E. V. King. shall indicate, to taking the interpretation of the learned Chief
Lilley J. Justice, that a man may refuse to answer ; — that may possibly
explain it. In all probabiUty, that was present to the minds of
the Legislature. Whatever conception you attempt to fix of this
section, it is by no means satisfactory. It has, no doubt, produced
considerable doubt in the interpretation of the statute, but it may
be that in creating a long series of new misdemeanors (I think
there are twenty-four), entirely the creatures of this statute, that
the Legislature thought it would be better to make this enact-
ment ; that although a man might be exposed to a prosecution
for misdemeanour under the statute, he shall not refuse to answer.
That may have been present to the minds of the Legislature. It
is difficult at any time to say what is the actual intention of the
Legislature, and all we are bound to do is to gather the construc-
tion from the instruments submitted to our judgment. Well,
then, we know that the law leans strongly against imphed repeals.
If there is another rational interpretation to avoid that, it must be
put upon it. If that be so, the principle holds more strongly
against implied enactments, because in the absence of that
express enactment the question itself is not unlawful by the
common law ; if we take the literal reason of the section, it would
make any question with that view, or having that tendency,
unlawful. It would be an extension of the common law by implied
enactment, because at Common Law the question was not
unlawful, nor the answer. But the protection he had was this,
that if it tended to criminate him, he was not bound to answer it.
But that protection seems to have been removed. Therefore I
think the conviction must be affirmed.
Sheppard J. Sheppaed J. : With regard to the first point, I am of opinion
that on a debtor's petition to be adjudicated an insolvent, it is not
necessary that the petition should be supported by affidavit.
Under s. 43, it is on the " presentation of the petition and on
due proof of presentation," the debtor can be made an insolvent
on a petition containing an allegation of his inabihty to meet his
creditors, and that is one of the acts of insolvency set under out
s. 44. Where the proceedings are adverse, where it is a creditor's
suit, it is necessary that there should be an affidavit verifying
the petition ; and where in the latter section liquidation by
arrangement, which is a non-contentious suit, and the debtor
has to file a petition, he also has under the rules to make an
affidavit, and on reference to form No. 89, he does not swear
to the fact of his being unable to pay his debts, but simply makes
CRIMINA.L EEPORTS, 1860—1907. 103
an affidavit as to the most convenient place for his creditors to ^- "• ^™<*-
meet. Therefore, the principle of the Act is, that in contentious sheppard J.
suits, the appUcation for adjudication must be supported by
affidavit, and in non-contentious cases it need not. I do not
apprehend that r. 38 applies, that speaks of motions, and
although the learned counsel informed the Court of a similarity
between petitions and summonses in the Court of Chancery, I
apprehend it has no appHcation, because under the rules petitions
are excluded, and even if it did apply, there is authority for
holding that the Act of the Legislature must prevail over the
rules. Lord Chief Justice James says : — " The Act of Parlia-
ment is framed, and the rule must be interpreted by it, and that
rules must give way to the plain terms of the Act." Here the
plain terms of the Act are, that on an application for adjudication,
the petition is to be filed, and on proof of that, which would be
furnished by the endorsement of the Registrar on the petition,
adjudication is made. Therefore, I think that point must fail.
With regard to the other question, no doubt it is a matter of
very great difficulty, and I would refer to the previous Acts of
Council and of the Legislature, which deal with the examination
of insolvents, and what questions they were bound to answer,
and what they were permitted to refuse to answer. Under the
old Insolvency Act of the Colony of New South Wales (5 Vic,
No. 17), the insolvent was compelled to answer all questions that
tended to the discovery of his property or estate, and there was
no privilege allowed him. That does not appear to have been
a satisfactory state of law, and it was altered by the 7 Vic, No. 19.
By s. 22, it is enacted " That if any insolvent under examination
before the Court or Commissioner shall refuse to answer any
lawful question put to him, he may be committed to prison
until he shall submit to make such answer. Be it enacted that
after the passing of this Act no question put to an insolvent
on any such occasion shall be deemed unlawful by reason only
that the answer thereto may expose him to punishment under
this Act. Provided that no such examination or any answer
thereto shall be admissible in evidence against such insolvent
(other than on a prosecution against him for perjury) except
for the purposes of this Act only." Then 19 Vic, No. 33, says,
" Provided however that no examination or answer of the person
charged with any indictable ojEfence under the provisions of the
Insolvent Acts in force for the time being shall be admissible .
in evidence against him on the trial of any indictment other than
lOi QUEENSLAND JUSTICE OF THE PEACE.
R. V. King. a prosecution against him for perjury." So that before The
SheppaxdJ. Insolvency Act of 1864, the law was, that an insolvent should
give full discovery, but that his answer could not be used against
him on the trial of any other indictment other than perjury. The
Act of 1864 was drawn from the English Act passed in the 12th
and 13th Vic, and that also enacted that fuU discovery should
be made, and it was held to take away from the insolvent the
right to object to any question, although the answer might tend
to convict him. That was the law down to Begina v. Scott (sv/pra).
But it seems to me that it must be remembered that that was a
decision the correctness of which was very much canvassed.
It is disapproved by Mr. Greaves in his " Russell on Crimes,"
and was dissented from by one of the Judges forming the Court,
and it was strongly disapproved by Sir Fitzroy Kelly in a late
case, and also to a certain extent by Sir A. Cockburn. So that
although the law had been settled in that way, there had been all
these discussions on the matter. Then the Act of 1874 begins,
and it is necessary to ascertain what the Legislature intended
by the words used in the Act, and it must be remembered that
they were deahng with the necessity of having a fuU discovery
of the insolvent's property and estate, and also that there was
a maxim of the Common Law that a man should not be compelled
to accuse himself. That being the state of the case, ss. 114,
115, and 116 of the Act are passed. Section 114 is for the purpose
of bringing the insolvent before the Court and for the discovery
of documents. Then, before enacting to what extent the insolvent
is to be examined, s. 115 is put in : — " No question put to any
insolvent on any examination under this Act shall be deemed
unlawful by reason only that the answer thereto may expose
him to punishment in respect of some one or more acts or things
by this Act made punishable as misdemeanors." Section 116
gives the right to the Court to examine the insolvent. It seems
to me impossible to hold that the Legislature, under s. 115, did
not intend to draw a distinction between misdemeanors and
felonies, and that when they say that no question put to the
insolvent shall be deemed unlawful by reason only that the answer
thereto may expose him to punishment in respect of some one cfr
more acts or things by this Act made punishable as misdemeanors,
it seems to me that they must have intended to take into con-
sideration the doubt there was in the law before, that in the case
, of felony he should not be compelled to accuse himself. But I
do not think that it means that the question itself is to be unlawful,
CEIMINAL REPORTS, 1860—1907.
103
that is to say, that the Judge is to interfere and say that a question
which may relate to the discovery of the deahngs of the insolvent,
and may also lead to a prosecution for felony, that he is to say,
" I cannot allow that question to be put." An unlawful question,
in the ordinary sense of the term, is one that the Judge says cannot
be put in law. So that in my opinion the result is, that when a
question is put to an insolvent which in some way may expose
him to the punishment for felony, and which may be given in
evidence against him on a charge of felony under the Act, that he
has the right to demur to the question and refuse to answer it.
In this case the objection was not made, and inasmuch as the
objection was not made, the case of Regina v. Sloggett (1 Dears.
656) is an authority, and, therefore, the question having been
answered without objection, it appears to me that it was properly
received, and, consequently, the conviction must be affirmed.
Conviction affirmed.
Solicitor for prisoner : A. J. Thynne.
Solicitor for prosecution : TAe Crown Solicitor (Robert Little).
R. V. KiNd.
Sheppard J.
[In Banco.]
R. V. DODWELL.
L4 S.C.R. 171 ; 1 Q.L.R. Pt. I., p. 84.— Note.— See also s. 641 of Criminal Code.
Case referred to in R. v. Highfield (5 S.C.R. at 188, post).]
Public servant — Misappropriation of money — Evidence — The Audit
Act of 1874 (38 Vic, No. 12), s. 49.*
A public servant may be conYicted for misapplying moneys which have come
into his possession for or on account of the Consolidated Revenue, notwithstanding
that it was not his duty to receive such moneys, and it is not necessary to a
conviction that the Government should have had any further claim or title to
such moneys beyond the right to deal in account with them.
Per Sheppard J. ; The Crown must prove that the Government had a special
or general property in the moneys upon receipt thereof by the prisoner.
Cbown Case Rbseevbd by Mr. Deputy Judge Hely.
G. W. DodweU was tried before me at the last sittings of the
Western District Court, holden at Warwick on the 26th of October,
A.D. 1875, under the 49th section of The Audit Act, for that he, being
a7th,
1876.
38th April.
Cockle G.J.
Lutwyche J.
Lilley J.
Sheppard J.
* Repealed— -S<e Criminal Code, ss. 398 (V.), 641.
106 QUEENSLAND JUSTICE OF THE PEACE.
R. V. DoDWELL. in the Public Service, did misapply certain moneys whick had
come into his possession on account of the ConsoUdated Revenue.
The evidence adduced before me as Deputy Judge in the trial,
so far as relates to the question I have to submit to the Court of
Criminal Appeal, was as follows : —
In June, 1875, prisoner held the situation of Clerk of Petty
Sessions at Warwick, and on the 29th of that month, E. B. Douyere,.
a pubhcan residing in that town, saw the prisoner, asked him to
forward her publican's Ucense fee to the Treasury, and for that
purpose handed to him the sum of £30 in bank notes, which
prisoner received from her, and for which he gave her a receipt,
which was produced and put in evidence at the trial. Prisoner
was to get a bank draft for the above amount, and send it down
to the Treasury for her, she at the same time handing him the
price of the draft.
Douyere never got that money nor any part thereof back from
the prisoner.
r. 0. Darvall was then called, and proved that he was Revenue
Clerk in the Treasury ; that it was his duty to receive all Govern-
ment moneys on account of the Consohdated Revenue ; and
that the prisoner had been in the habit of sending money down
to the Treasury for pubUcans' licenses ; that he (prisoner) was
not bound to receive general hcense fees, but if he did receive
them he should forward them to the Treasury immediately ; that
he (witness) had never received any credit for the hcense fee of
Mrs. E. B. Douyere ; that no person was appointed to receive
Hcense fees — they are bound to be paid into the Treasury ; that
Mrs. Douyere's had not been paid into the Treasury ; that it
could not have been paid in without his knowledge, and that it
still remained unpaid.
Edward Boyd CuUen, Chief Clerk in the Treasury, proved that
it was his duty to open all letters addressed to the Under Secretary
of the Treasury, and should there be any remittances therein,
to hand them to the Revenue Clerk ; that he (witness) knew
prisoner, and that he never received a remittance from him on
account of Mrs. E. B. Douyere.
At the conclusion of the case for the prosecution, prisoner's
counsel objected that there was no case to go to the jury, as there
was no evidence to show that the money received by prisoner was
received on account of the Consolidated Revenue of the colony.
I overruled the objection, and left the case to the jury, who
found the prisoner guilty. I passed judgment on him, and he
is now in gaol.
CRIMINAL REPOETS, 1860—1907.
107
Upon the application of counsel for the prisoner, I consented to ^- '"■ Dodweli,.
reserve for the opinion of the Court the questions : " Whether,
upon the facts stated, I was right in leaving the case to the Jury,
and whether the prisoner was properly convicted ? "
Real, for prisoner. The money was received not in the capacity
of a servant of the Government, but as agent for the prosecutrix
for the purpose of obtaining her license from the Treasury, he
not being an officer appointed for receiving license fees on account
of the Consolidated Revenue. R. v. Beaumont (Dears. 270),
R. V. Thorp (Dears. & B. 562, 27 L.J. (M.C.) 764).
Griffith A.G., for the Crown.
Cockle C.J. : In this case, the question reserved for our Coekle C.J.
decision is, " Whether, upon the facts stated, there was a case
for the jury ? " Now, the prisoner was charged for that he being
in the public service, did misapply certain moneys which had '
come into his possession on account of the Consolidated Revenue.
Now, money did come into his possession — on what account ?
It was his duty to receive all Government moneys on account
of the Consolidated Revenue. He had been in the habit of
sending money down to the Treasury for publicans' licenses,
although not actually bound to receive general license fees.
Then, according to his own statement in the receipt, the money
was " received on account of the Public Service of Queensland
for a pubHcan's License." Accompanying that with the fact that
it was his duty to receive money on account of the Consolidated
Revenue, I apprehend that the inference is that this money came
into his possession on account of the Consolidated Revenue.
It is possible — though that probably would depend upon whether
or not a certificate from the Bench had been lodged at the Treasury,
or whether or not other proceedings had taken place at the
Treasury — it may be presumed that under certain circumstances
Mrs. Douyere could have countermanded the purpose for which
the money was lodged. There is no evidence whatever that she
did so ; and as against all the world, except Mrs. Douyere, and
possibly even as against her, the authorities at the Treasury
had the right to the possession of this money. That being so,
I think all the facts necessary to sustain the information under
the 49th section of The Audit Act seem to have existed, and,
all events to have been found by the jury ; and, consequently,
that the conviction must be affirmed.
Lftwyche J. : The sole point reserved for the consideration Lutwyohe J.
108
QUEENSLAND JUSTICE OP THE PEACE.
U. V. DODWELL.
Lutwyohe J.
Lilley J.
of the Court in this case is : — " Whether, upon the facts stated,
I was right in leaving the case to the jury, and whether the
prisoner was properly convicted ? Well, I think upon the facts
stated that the learned Judge was quite right in leaving the case
to the jury, and that the prisoner was properly convicted. The
propriety of the conviction rests upon circumstances which have
just been stated by the Chief Justice, and upon the fact which
seems to me to have been perfectly established, that the money
was received on account of the Consolidated Revenue. The Act,
which appears to have been very carefully framed, and especially
this section of it, seems to have been intended to prevent persons
in the Public Service, who received pubUc money, from appro-
priating it to their own use, whether it is their duty to receive
the money or not. It may be part of their duty to receive money
for the particular purpose for which it is lodged in their hands,
but on the other hand it may not ; but the section apphes to all
persons in the Public Service who obtain possession or control
of moneys on account of the Consolidated Revenue. Then, if
any person in the Public Service receives money to be applied to
the Public Service, and therefore forms necessarily a part of the
Consolidated Revenue when it reaches the Treasury, he, under
the terms of this section, appears to be subject to the penalty
contained in it. Now, it is quite clear that Dodwell was in
the PubHc Service ; he was clerk of petty sessions at Warwick ;
the money came into his possession from Mrs. Douyere, and it was
her money, in my opinion, until it reached the Treasury. It
is not necessary, however, to state whose property the money
was ; it is sufficient that it shall be shown that it is money, and
that it came into the possession of a public servant for and on
account of the Consolidated Revenue. That appears to me to
have been perfectly established, and, therefore, I think that this
conviction was perfectly right, and ought to be affirmed.
Lilley J. : I have but very few words to add to the judgments
already delivered. It seems to me that the plain meaning of the
section is, that if anyone being in the Public Service receives
money with which the Government would have a right to deal in
account in any way, although it might not ultimately be entitled
to keep the money, if a person receives money under these
circumstances and misapplies it, he is guilty of the offence. I
think the main question is — " Was he in the Public Service, and
did he receive the money on account of the • Consolidated
Revenue ? " or, in other words, " Did he receive money with
CRIMINAL REPORTS, 1860—1907.
109
which the Government had a right to deal or to have the immediate
possession ? " — and that appears to me to be the whole meaning
of the Act. In this case, the facts are clear enough — he received
the money on account of the Public Service, and that fact being
left to the jury, they have found that it was received on account
of the Consolidated Revenue. It seems clear that Mrs. Douyere
paid her money in order to obtain some Ucense which had been
already granted under The Publicans Act. The Government,
therefore, had a clear right to deal with the money, and whether
they might deal with it in the way of retaining it and granting
the license, or in refusing to issue the license and returning the
money to her, was a matter with which the prisoner had nothing
to do. I think, therefore, that the conviction must be affirmed.
Sheppabd J. : The prisoner in this case is indicted under the
49th section of The Audit Act for misapplying certain moneys
which had come into his possession on account of the Consolidated
Revenue, he being a person employed in the Public Service. It
appears to me that it is necessary to establish that the money
which is received by a pubUc officer is m.oney which by the receipt
becomes either the special or the general property of the Govern-
ment. That is analogous to embezzlement, and it is clear, that
although, since the alteration of the law it is not necessary to
show that the money is received by the servant in virtue of his
employment, still it is necessary to establish that the money
received is the property of the master ; that is to say, that he has
either a special or a general property in that money. There is a
late authority for that in the Queen v. Gullen (L.R. 2 C.C.R. 28).
Here it appears to me the question is — Whether, when the prisoner
being in the Public Service received this money, the Government —
the Crown — had a special or general property in it ; that is to
say, supposing some other officer of the Government had come
to the Clerk of Petty Sessions directly this money was received,
and said, " Now hand this money over to me." If he had the
right to do that, it appears to me that the Crown had a special
property in the money. It might turn out afterwards that if the
license fee had been paid by the agent of Mrs. Douyere in Brisbane,
the money would have to be returned, but if they had a special
property in the money, then the prisoner was, it seems to me,
properly convicted. Now there were two states of circum-
stances laid before the jury — one, the case argued by the learned
counsel for the prisoner, where it appeared that the money was
paid to the prisoner for the purpose, and for the purpose only, of
R. V. DOBWELL.
LiUey J.
Sheppard J.
110
QUEENSLAND JUSTICE OF THE PEACE.
E. V. DoDWELL. getting a draft, and sending that draft down to the Treasury.
Sheppard J. It appears now, from the receipt, that he acknowledges not to
have received it on behalf of Mrs. Douyere, but on behaK of the
Public Service. The obtaining the draft was merely the course
of transmitting the money to the Treasury. It therefore seems
that directly he received it on behalf of the PubUc Service, as
stated in the receipt, that the officers of the Revenue had a right
to its immediate possession, and having that right they had that
special property which it appears to me they must have, for it to
form a portion and to be received on account of the Consolidated
Revenue. These facts, whether he received it on behalf of Mrs.
Douyere, on whether he received it on behalf of the Consolidated
Revenue, were left to the jury, and they have found that the
received it on behalf of the revenue. I am therefore of opinion
that the conviction must be affirmed.
Conviction affirmed.
Solicitors for the prisoner : Thompson & Hellicar.
Solicitor for the Crown : The Crown Solicitor (Robert Little).
1877.
13th November.
Cockle C.J.
Lutioyche J.
Lilley J.
[In Banco.]
In re HAUGHTON.
[5 S.C.B. 53 ; 1 Q.L.R. Pt. 11., p. 53 Note.— See also Emmerson v. Clarke, 3
S.C.R. 76, ante p. 71 ; Millis v. Kiefer, 10 Q.L.J. 142, post ; Clifford v. White,
4 Q.J.P.R. 132 ; 1910 S.R.Q. 364.]
Illegally losing cattle — Prohibition — 17 Vic, No. 3, s. 6.*
In order to support a conviction under s. 6 of 17 Vic, No. 3, for illegally using
an animal, it must be shown that the animal was used for the profit, convenience,
or pleasure of the party using it.
Motion to make absolute a rule nisi calhng upon Thomas John
Sadlier, P.M., Tambo, and Maurice Solomon to show cause why a
prohibition should not issue restraining them from further pro-
ceeding in respect of a conviction against George Haughton for
illegally taking and using a horse, upon the grounds : (1) That the
magistrate acted ultra vires in admitting evidence given in another
case ; and (2) that there was no evidence to support the con-
viction, or, in other words, that there was no evidence of using
on the part of Haughton.
* See Criminal Code, s. 445.
CRIMINAL REPORTS, 1860—1907. Ill
Haughton and a man named Lacy were originally charged ■^" '■" Haoghton.
before the Police Magistrate with stealing the horse in question.
After several witnesses had been examined this charge was with-
drawn, and one for illegally using substituted. The depositions
previously taken were read over and accepted as evidence against
the defendants, no objection being taken by him. The evidence
was again sworn to, and an opportunity of cross-examination
allowed.
Haughton was sentenced to six months' imprisonment with
hard labour.
The facts appear in the judgment.
Garrick, for Haughton, moved the rule absolute.
Griffith A.G., for the Crown, in support of the conviction.
LuTWYCHE J. deUvered the judgment of the Court. Lutwyohe J.
In this case, as we are all agreed upon the second ground on
which the rule was obtained, it will not be necessary for me to
say anything about the first. With regard to the second ground
of the objection to the conviction, which is that there was no
evidence to support the conviction, I think that, after the very
careful investigation that the Court has made of the evidence,
that the learned counsel, Mr. Garrick, who appeared on behalf
of the prisoner Haughton, is right. To support a conviction
for illegally using an animal under s. 6 of 17 Vic, No. 3, it must
appear the animal was used for the profit, convenience, or pleasure
of the party using it — that was the definition which I gave in
my construction of the meaning of the statute in the case of
Emmerson v. Clarke (3 S.C.R. 76). Now, in this case I am unable
to see that there is any evidence to show that Haughton used
the mare in question for his own profit, pleasure, or convenience.
So far as I have been able to form a judgment on the facts of the
case, the animal was at one time in the course of the present year
the property of Haughton. It was sold by him to Lacy, it
appears, in this way, that he gave Lacy the right to sell any
horses belonging to him. Then it appears^ that, in April of the
present year. Lacy sold a number of horses, which had been
running the mail on the Charleville line, to Solomon and Bredhauer.
This mare in question was, as late as July of the present year,
running at large, and a day or two afterwards was, by the order
of Haughton, driven by Wilhams to his place at Nive. A week
"after that he, accompanied by Lacy, came to the paddock and
assisted him in catching the mare, which was then mounted by
112
QUEENSLAND JUSTICE OP THE PEACE.
In re Hatjghton. Williams. But there is no evidence in the case from which it can
Lutwyohe J. possibly be inferred that Haughton was aware of the sale by
Lacy to Solomon and his partner of the animal in question.
Then, if Haughton did not know of the sale to Solomon, but
was aware that he had given Lacy authority to sell any horse
belonging to him, he might, and no doubt did, reasonably infer
that Lacy was desirous of selling this mare which was included
in the terms of the contract between himself and Lacy, and it
seems to me to be a very natural course of conduct for him to
tell Lacy where the mare was, to point her out, to assist in catch-
ing her, and let her be used by the owner. Therefore he cannot
be said to have illegally used the mare, not having done so for
his own profit, convenience, or pleasure. Therefore I think the
conviction must be quashed.
Bide absolute.
Solicitor for the Crown : The Crown Solicitor.
SoUcitors for George Haughton : Daly <fe Abbott.
1880.
19th March.
Lilley C.J.
Lutwyche J.
Hardivg J.
[Full Court.]
E. V. WELLS.
[5 S.C.R. 181 ; 7 Q.L.J. N.C. 105.— Note.— 29 Vic, No. 6, repealed.]
Criminal law — Crown case reserved— Error — Larceny Act of 1865
(29 Vic, No. 6), s. 44* — Bobbery under arms — Wounding.
To support a conviction under a. 64 of the Larceny Act of 1865 (29 Vic, No.
6), it is not necessary that the wounding and robbery should be committed on the
same person.
On a. Crown case reserved, counsel are not allowed to refer to matteis outside
the case as stated.
Ceown Case Reserved by Lilley C.J.
Joseph Wells was tried at Toowoomba for robbery under arms
and wounding. The information was laid under s. 44 of the
Larceny Act (29 Vic, No. 6), and in the first count alleged that,
on the 26th of January, 1880, the prisoner, at CunnamuUa, bemg
then armed with a loaded revolver, " in and upon one Joseph
Berry, feloniously did make an assault ; and him, the said Joseph
Berry, in bodily fear and danger of his fife feloniously did put,
and certain money . . . the property of the said Joseph
See Criminal Code, s. 411.
CRIMINAL REPORTS, 1860-t1907. 113
Berry, from the person, in the presence and against the will of ^^- "• Wells.
the said Joseph Berry, feloniously and violently did steal, take,
and carry away. And the said Joseph Wells, immediately after
he robbed the said Joseph Berry as aforesaid, did, by discharging
said pistol so loaded as aforesaid, one Wilham Murphy feloniously
and unlawfully wound." The words of the second count followed
those of the first, except that the money stolen was alleged to be
that of the corporation of the Queensland National Bank,
Limited, instead of that of Joseph Berry, as stated in the first
count. Upon this information the prisoner was found guilty
and sentenced to death. After sentence, and before it was
carried into efEect, application was made to the Chief Justice
to state a special case for the opinion of the Full Court, which
he did as follows : — The following matters alleged to be errors on
the record have been submitted to me, and I have been requested
to solicit the opinion of the Supreme Court thereon. The matters
are apparent on the information, and, of course, arose before me
at the trial. They are as follows : — (1) That the first count of
the information is bad, because it charges the prisoner Joseph
WeUs with having feloniously made an assault upon one Joseph
Berry, and with having put the said Joseph Berry in bodily fear
and danger of his life, and with having feloniously and violently
stolen certain property of the said Joseph Berry, and with
having, immediately after he so robbed the said Joseph Berry
as aforesaid, feloniously and unlawfully wounded one William
Murphy. (2) The second count is bad, because it charges the
prisoner (as in the first count), and with having . . . stolen
certain property of the corporation of the Queensland National
Bank, Limited, from the person, and in the presence, and against
the will of the said Joseph Berry, and with having immediately
after (as in the first count). (3) That the prisoner was im-
properly indicted under s. 44 of the Larceny Act of 1865. (4) That
the Queensland National Bank, Limited, is not a "person"
within the meaning of s. 44 of that Act. (5) That both counts of
the indictment are bad for duplicity in stating two offences in the
one count. (6) That the indictment and the matter contained
therein are not sufficient in law to warrant the judgment against the
said Joseph Wells, (7) That a general judgment having been
given on the whole indictment, one count at least of which was bad
in substance, the judgment ought to be reversed. The question
is. Are all or any of the matters errors in law ? I submit them,
therefore, to the Court in virtue of my powers of the statute."
114 QUEENSLAND JUSTICE OF THE PEACE.
E. V. Wells Garrick (with him Chvbb and Sutledge), for the prisoner, asked
how many counsel the Court would hear on behalf of the prisoner.
LiLLEY C.J. : In matters of error, only one is usually heard on
each side. The Court will hear the whole number if they wish.
Lille Y C.J. : There was a verdict on both counts, and a
general judgment was given. This must be treated as a matter
of error.
Garrick asked whether it was open to the prisoner's counsel to
refer to anything beyond the indictment.
Haeding J. : My feeling is that they should be allowed to argue
anything that was tenable. If it were shown there was error, it
could be rectified on the special case.
LuTWYCHE J. : The Court has never allowed counsel to travel
outside the special case as stated.
LiLLEY C.J. : The constitutional tribunal has disposed of all
matters of fact. The Court must deal with the information and
say whether the law allowed the Attorney-General to file it, and
whether it was sufficient.
Garrick : The objection to the first count is the robbing of one
person and the wounding of another. The prisoner's contention
is that they must be of the same person. (29 Vic, No. 6, ss. 44, 48 ;
24 and 25 Vic, c 96, s. 43). The intention was that where there
was robbery, death should be inflicted when the person robbed was
wounded. (R. v. Thomas, 1 Leach 330.) As to the second
count, the property is laid in the Bank. (R. v. Rudick, 8 C. & P.
237.) As to error, Gregory v. Regina, 15 Q.B. 957 ; Holloway
V. Regina, 17 Q.B. 317, were cited ; Dwarris, 635.
Chubb and Rutledge followed.
Pring A.G. and Griffith Q.C., for the Crown, cited, as to error,
O'Connell v. Reg., 1 Cox 531 ; Nash v. Reg., 33 L.J.M.C. 94.
Where the crime is capital, no difference how many counts, there
is no other punishment. The offence is compounded of two
other offences. (7 Wm. IV. and 1 Vic, c 87 ; 7 and 8 Geo. IV.,
c 29 ; 9 Geo. IV., c 55 ; 2 Russell, 115). The statute should
have used words showing that the Legislature meant the same
person. The section was passed to meet the mischief in R. v.
Thomas {supra).
Griffith Q.C. followed.
Lutwydhe J. LuTWYCHE J. : I think it best to confine myself to the pure
questions of law which arise on the record. The first and most
CRIMINAL REPORTS, 1860—1907.
115
important question is that which was expressed in the first count of
the indictment, and to say whether there was any error of law
stated in that, one must look at s. 44 of the Larceny Act of 1865
and see what its fair meaning is. In looking at a section of
an Act of Parliament with a view to give it its true construction,
one must, in the first place, look to the language of the section
itself, and if that is clear and plain, so that " he who runs may
read," there will be no occasion to travel further. But if there be
any ambiguity the Court may with propriety look to other
sections of the same statute, or to sections of any other statutes
which are in pari materia. It is an elementary rule, and one
consistently enforced by the Courts in giving their opinion on
the meaning of statutes, that where the grammatical meaning
is plain and clear that should be followed, unless some manifest
inconvenience, absurdity, or injustice would result. Looking at
the terms of s. 44, it seems to me that the words are exceedingly
plain and clear. I consider that the first ingredient in the offence,
Tvhich was provided for in that section, and which, I beheve,
was created by it, refers to the intent with which the robbery was
committed, and that the whole of it refers to an offence com-
pounded of robbery and wounding, the latter of which might
be either before or after the robbery. The contention of the
counsel who have addressed the Court on behalf of the prisoner
was the word " any," in the latter part of the section, must
mean " the same." They might, of course. They might be
confined to the same person who was robbed and wounded ;
but, as was admitted by one of the counsel, the word " any "
might embrace a different person from the one who was either
robbed or wounded ; and it appears to me that is really the
meaning we are to put upon that part of the statute. I see no
manifest inconvenience, absurdity, or injustice likely to follow
from our coming to such a conclusion. On the contrary, I think
there would be a manifest inconvenience, a manifest absurdity,
and a manifest injustice from holding the reverse opinion. A case
I put in course of the argument appears to me in a simple way to
point out the policy of the Legislature and to assist in explaining
the meaning of the words which are used in s. 44. Supposing an
aged and feeble man on a journey, and accompanied by another
whom he had taken with him for his assistance, were considered
by an evil-disposed person to be a desirable person to rob, and the
latter were, in order to effect his purpose, to wound the strong
man and immediately afterwards rob the other, it seems to me
E. V. Wells.
Lutwyohe J.
116
QUEENSLAND JUSTICE OF THE PEACE.
li. c. Wells.
Lutwyche J.
Harding J.
Lilley C.J.
that the Legislature has very prudently provided for occurrences
of that kind, and has provided for it in no other part of the statute.
If the word " any " did not embrace the person who was robbed,
as well as his companion who was wounded, very great evils
might result. The Legislature has chosen that the punishment
for these two offences together shall be much more severe than
they considered necessary where the robbery and wounding are
separate, and it seems to me that in passing the Act they proceeded
with care, circumspection, and astuteness, when they made this
section refer to more than one case. I am therefore of opinion
that the first count of the information was good, and that there
was no error in that count. The second count, as far as I can
see, only differs from the first in the fact that the property which
was alleged to have been stolen was laid in the corporation of th©
Queensland National Bank, Limited, instead of in Berry. To
make it a good count the property must have been laid in some
person, and it might well have been either in Berry, as in the
first count, or in the bank. I can see no error there. The other
points raised will be more or less decided by the construction the
Court puts on the first and second objections. It was objected
that a corporation was not a person, but it was not alleged in
the information to be such, so that there is nothing in that point.
Both counts, I think, are good ; and even if one of them were
bad, as the punishment annexed by the Legislature is the same,
I think the case of O'Gonnell v. The Queen, which was cited,
disposes of the matter. Upon the whole, therefore, I am of
opinion that the judgment ought to be affirmed.
Habding J. : I think that a Judge has power to state a special
case, even though the points raised had not been taken at the
trial. I concur with the views expressed by Lutwyche J.
Lilley C.J. : I assent entirely to the conclusion at which my
brother judges have arrived — that there was no error on this
record, and that the judgment ought to be affirmed. I con-
sidered the points raised, and directed the jury that it was not
necessary that the person wounded should be the same person
who was robbed. I also directed them that there must be an
immediate connection between the robbery and the wounding,
that, in fact, the wounding must be either at the beginning for
the purpose of getting hold of the plunder, or for the purpose
of securing his escape with the booty. I most carefully directed
them as to the immediateness, so that the prisoner has not suffered
CEIMINAL REPORTS, 1860—1907.
117
irom the absence of any averment on this point. I also express
the opinion that s. 44, upon its plain interpretation, is especially
apphcable to the circumstances of this colony. I think the
course I have taken in stating a special case is far preferable to a
writ of error, in which latter event the prisoner would have been
dragged to the Court to listen to the whole of the argument
and receive judgment.
Ltjtwyche J. : I am in favour of the course taken.
Conviction affirmed.
Solicitor for prisoner : Bunton.
B. V, WeI/LS.
Lilley C.J.
[PtTLL CotTET.]
R. V. HIGHFIELD.
[5 S.C.R. 186 — Note.— See alsb ss. 391 and 39SV of Criminal Code.]
Criminal law — Misapplication of moneys by pvblic servant — Audit
Act of 1874 (38 Vic, No. 12), s. 49*.
On an information under s. 49 of The Audit Ad of 1874 it is not necessary to
prove tliat tlie misapplication of public money was fraudulent, or that it was
misapplied or improperly disposed of with any intent whatever.
Crown Case Reseeved by Lutwyche J.
Wm. Highfield was tried before me at the last Criminal Sittings
■of the Supreme Court, held at Brisbane, under s. 49 of The Audit
Act of 1874, for that, while he was employed in the pubhc service
as Engineer of Waterworks, a certain sum of money amounting to
£83 12s. 8d. came into his possession and control by virtue of such
employment, for the use and benefit of certain other persons, and
that he feloniously misappUed £67 15s. of the same, contrary to
the provisions of that statute. A second count in the information
■charged him with improperly disposing of the same ; and there
were two other counts charging him with the misapphcation and
improper disposal of the same, he being a person Uable to account
for the receipt and expenditure of public moneys. It appeared
from the evidence given that in November, 1879, the prisoner
was in the public service as Engineer of Waterworks, and that
in that month he applied to Edward Deighton, Under Secretary
of the Department of Works, Brisbane, for authority to draw
on the Q.N. Bank at Ipswich for the sum of £83 12s. 8d., to meet
1880.
6th April.
Lilley C.J.
Lutwyche J.
Harding J.
* See Criminal Cede, s. 641.
118 QUDENSLAND JUSTICE OF THE PEACE.
R. V. H16HFIELD. a corresponding amount due for wages at Warwick for the month
of October to men employed in the Works Department. Mr.
Deighton gave the required authority to draw on the Bank,
and the prisoner drew for the amount, which was placed by the
Bank to his credit in an account which he then had at the Bank,
headed " William Highfield's PubUc Account." In the month
of November the prisoner had no more than that oiie account
at the Bank, his private account having been closed in October,
1878. The draft for £83 12s. 8d. drawn by the prisoner was
presented at the Office of Works, and Mr. Deighton gave his
official cheque on November 24 in exchange for it, and got a
disbursement of that sum. On November 19 the prisoner had
drawn a cheque against the amount placed to his credit at the
Bank under the authority given by Mr. Deighton. That cheque
was made specially payable to the order of Mr. Rodgers, who
was then engineer of the Warwick Waterworks. Mr. Rodgers
endorsed the cheque, and got it cashed at the Warwick branch
of the Q.N. Bank, and with the proceeds paid the wages of the
men in the Works Department, for whose benefit the prisoner
was authorised to draw on the Q.N. Bank at Ipswich. On
November 19 the prisoner drew against the same amount two
cheques to pay private creditors — one for £27 and one for £15 —
and up to November 28 inclusive he had drawn against the
amount cheques in favour of his private creditors, aU of which were
duly paid, amounting to £67 15s. The prisoner's cheque drawn
to the order of Rodgers was afterwards presented at the Ipswich
branch of the Bank and came back dishonoured, and at the time
of the trial stood to the debit of Rodgers in the books of the
Warwick branch. The prisoner had no authority from the
Government to open a pubhc account at any bank, and never
accounted in any way for the application of the money which
had been placed to his credit. In summing up I directed the jury
that it was not enough for the prisoner to show that the person
for whose benefit the money paid into the prisoner's credit was
intended had been paid by another person and from a different
source ; that the offence charged was not embezzlement, but
was created by the provisions of s. 49 of the Audit Act ; that
under that statute it was not necessary to prove any felonious
intent, the act of misappHcation or improper disposal being suffici-
ent to satisfy the statute ; that upon this information they had
only to be satisfied that by virtue of such employment the sum
of £83 12s. 8d. came into his possession for the benefit and use of
CRIMINAL EEPORTS, 1860—1907.
119
other persons, and that while it was in his possession he unlawfully ^- '"■ Hiohoteld.
misapplied or improperly disposed of a portion of it. Mr. Chubb,
who defended the prisoner, objected to my direction, and at
his request I reserve for the consideration of the Full Court the
following question : — " Was I right or wrong in my direction
to the jury on the matters of law contained in it ? " The prisoner
was convicted and sentenced to imprisonment, with hard labour,
in Brisbane Gaol, where he now remains.
Chubb, for the prisoner : There must be a fraudulent mis-
apphcation. In ss. 75, 76, 77 of The Larceny Act of 1865 (29
Vic, No. 6), the word " fraudulent " is used.
Griffith Q.C., for the Crown, cited B. v. Wynn, 1 Den. 365.
Ltjtwyche J. mentioned B. v. Dodwell, 4 S.C.R. 171.
Habding J. mentioned B. v. Prince, L.R. 2 C.C.R. 154.
LiLLEY C.J. : The Court is of opinion that it is unnecessary to
allege that the misapplication was fraudulent, or that it was mis-
apphed or improperly disposed of with any intent whatever.
Conviction affirmed.
Solicitor for prisoner : C. F. Chubb.
Lilley C.J.
[Full Cottkt.]
R. V. GOMEZ.
[5 S.C.R. 189.]
Criminal law — Jurisdiction — Torres Straits — Annexation of Islands
—18 and 19 Vic, c. 54, s. 46—24 and 25 Vic, s. 44—43 Vic,
No. 1, s. 1 — Prerogative of the Crown — Letters Patent — Murder.
The Supreme Court has jurisdiction over islands in Torres Straits included in
the area described in the Schedule to 43 Vic, No. 1, annexed pursuant to Letters
Patent issued by Her Majesty in 1872 and 1878, and the proclamation in the
Goitrnment Gazette of 21st July, 1879.
Cbown Case Resbbved by Sheppard J.
Maximo Gomez, alias Pedro, was tried at Cooktown on the 30th
April for the murder of William Clarke at Possession Island on the
24th December, 1879. The jury found the prisoner guilty, and
sentence of death was passed upon him, but the sentence was
respited, certain points of law being reserved. The island where
the offence was committed was situated, according to the evidence
1880-.
1st June.
Lilley C.J.
Harding J.
120 QUEENSLAND JUSTICE OP THE PEACE.
B. V. Gomez. of a witness, in Torres Straits, and was distant about a mile aad
a-half from the mainland. It appeared to the learned judge that
the jurisdiction of the Court depended on (1) the vaUdity of the
Letters Patent issued by Her Majesty the Queen, dated 10th
October, 1878 (upon which The Queensland Coast Islands Act of
1879 was founded), and (2) whether the islands, being situate
within a marine league of the mainland of AustraUa, the Court
had jurisdiction to try the prisoner independently of the Letters
Patent, the Act of Parliament 43 Vic, No. 1, and the subsequent
proclamation of His Excellency the Governor published in the
Government Gazette of 21st July, 1879. His Honor stated in the
case that s. 2 of 3 and 4 Vic, 62, gave power to Her Majesty by
Letters Patent to erect into a separate colony, or colonies, any
islands which were, or which thereafter might be, comprised
within, and dependencies of the colony of New South Wales.
By s. 7 of 18 and 19 Vic, c. 54, Her Majesty had also power to
erect into a separate colony or colonies any territories which
might be separated from New South Wales by alteration of the
northern boundary thereof ; and by s. 2 of 24 and 25 Vic, c. 44,
she could, by Letters Patent, annex to any colony on the conti-
nent of Australia any territories which in the exercise of the
powers therein mentioned might have been erected into a separate
colony. The difficulty which his Honour felt was as to the legal
effect of the Letters Patent of 10th October, 1878. The islands
in Torres Straits lying between the continent of Australia and
the island of New Guinea were never dependencies of or reputed
to be within the colony of New South Wales, and there was no
Imperial Act giving power to Her Majesty to annex to this colony
any islands which were not dependencies of New South Wales.
He was not aware that the islands in Torres Straits had ever been
taken possession of on behalf of the British Crown, nor did the
Letters Patent recite that such possession had been taken ; and
it appeared to him that as the boundaries had been defined by
Acts of the Imperial Parliament, or under their authority, those
boundaries could only be altered by an Act of the Imperial
Parliament or by the exercise of some power conferred by the
same authority. The question for the decision of the Court was
whether, under the circumstances, the Circuit Court at Cooktown
had jurisdiction to try the prisoner.
Pring, A.G., for the Crown, referred to the Proclamation, 22nd
August, 1872, in 13 Government Gazette 1324, based on Letters
Patent, dated 30th May, 1872, with regard to islands within
CRIMINAL REPORTS, 1860—1907. 121
sixty miles off the coast ; Letters Patent, 10th October, 1878 ; B- "• Gomez.
Proclamation, 21st July, 1879 ; 43 Vic, No. 1.
HAKDrsfG J., referred to 18 and 19 Vic, c 54, s. 46 (1 Pring 230.)
Griffith Q.C. for the prisoner, referred to the Letters Patent of
1862 (1 Pring 234), 3 and 4 Wm. IV., c 62 (1 Pring 189) ; and
submitted the questions to be considered were (1) whether the
island in question was affected by the Letters Patent of 1872
(ante) ; and (2) whether the boundaries of the colony should be
altered by Act or prerogative. (Chitty on Prerogative, p. 29 ;
R. V. Jimmy, 4 S.C.R. 130 ; Damodhar Gordham v. Deoram Kanji,
1 App. Gas. 332.)
LiLLEY C.J. : The matter appears to me to be perfectly clear Lillej C.J.
and I should be very sorry for it to go forth that there is any
doubt as to the jurisdiction of the courts of the colony over the
islands annexed to the colony by the Letters Patent of 1872 and
1878. It might be taken as a conclusion of fact that these islands,
up to the time Her Majesty assumeddominion over them, were
not under the dominion of any other power, nor within the ter-
ritories of any of the AustraHan colonies ; that, in fact, they were
islands which Her Majesty had power and was free to exercise
diminion over. Nothing can be clearer from a long chain of
history and practice that the Queen has the prerogative, by
Letters Patent, to erect unoccupied lands into colonies. She
may revoke those Letters Patent, or extend or Hmit the juris-
diction of the colony so erected; in fact, she has absolute power to
alter in any way the limit of the colony. These islands are in
that condition. Her Majesty had power to assume control over
them. She has done so, and it is not a matter which the Court is
at liberty to dispute that in issuing these Letters Patent she has
assumed lawful dominion over the islands therein mentioned.
The only question as to the vaHdity of the proceeding appears to
be this : Can Her Majesty, without the assent of the Legislature,
annex these lands to an existing colony with representative
institutions ? Caution had been observed in the matter, and the
islands were not annexed without the consent of the Queensland
Legislature. The last of the Letters Patent, at all events, were
issued upon the condition that a statute should be passed by the
colonial Legislature. Her Majesty's assumption of dominion is
perfeclty clear. In 1872 she created the Governor of this colony
the Governor of these islands, making provision at the same time
for becoming a part of the territory of the colony. The islands
122
QUEENSLAND JUSTICE OF THE PEACE.
E. V. Gomez. are therefore within the colony of Queensland, subject to the
LilieyC.J, jurisdiction of the Supreme Court of this colony, and the con-
viction must be upheld.
Harding J. Haeding J. : From the statutes cited it is seen that power had
been given to annex certain islands ; but we find nothing enacted
which would pervent Her Majesty adding other islands to a
colony with the assent of the local Legislature. Under these
circumstances it appears to me that Her Majesty had the power
to annex these islands, and that that power has been properly
exercised. I do not find it necessary for the purposes of the
present decision to deal with the other point in the case. I con-
cur with the Chief Justice in the formal judgment he has dehverd.
Conviction affirmed.
1881.
10th May.
[Full Cotjet.]
REGINA V. CORVIE AND LESNINI.
[1 Q.L.J. 1.— Note.— 31 Vic, No. 13, s. 65 is repealed. See now Justices Act
of 1886, s. 11.]
Caption — Admissibility of Depositions — 31 Vict., No. 13, s. 65.
! To make the depositions of a deceased person admissible as evidence, there
is no necessity for a general caption. The requirements of the statute, 31 Vic,
No. 13, s. 65, may be shown to have been complied with, from the whole
depositions.
The facts of this case are briefly these : —
The prisoners, Corvie and Lesnini, were charged at Gympie
in December, 1880, with an ''' attempt to murder " one Grisostolo.
Grisostolo died in January, 1881, and the prisoners were tried at
the Maryborough Circuit Court before Mr. Justice Pring in April
last, for the murder. The principal evidence against the prisoners
were the depositions of Grisostolo. At the trial, Corvie was
defended by Tozer (soUcitor), Lesnini, by Murray-Prior. At the
request of Prior and Tozer, Mr. Justice Pring reserved a case for
the decision of the Full Court. The depositions were objected to
as inadmissible evidence, principally, because there was no
proper caption within the statute.
The caption was in this form in each case : —
" Gympie, [25th] 30th December, 1880.
(Before J. Farrelly, J.P.)
Augustus Corvie, [Stephano Lesnini] charged with an attempt
CRIMINAL REPORTS, 1860-1907. 125
to murder one Celeste Grisostolo." It was proved at the trial Regina «. Cobvie.
, . ^ AND LeSNINI.
that Grisostolo was dead — that each prisoner was charged before
a justice of the peace with having attempted to murder Grisostolo
— that the deceased Grisostolo on each occasion, gave his evidence
before a justice of the peace in the presence of the accused —
that the evidence was taken on oath and that each prisoner ha_d
opportunity of cross-examination. Mr. Justice Pring admitted
the depositions against the prisoners, who were found guilty of
manslaughter, subject to the opinion of the EuU Court as to the
admissibility of the evidence."
Attorney-General for the Crown.
Murray Prior argued for Lesnini — and cited Reg. v. Newton,
1 F. and F. 641 ; Reg. v. Oalvin, 10 Cox C.C. 198.
The Court decided that the objections raised were not good in
law ; and that the depositions were rightly admitted. There is
no necessity that the caption to depositions should be exactly
similar to the form given under s. 65 of 31 Vict., No. 13 — provided
it be substantially the same. The requirements of the statute
may be shown to have been complied with from the whole depo-
sitions, not merely from the caption. Though thus there is no
necessity for a general caption, still it is desirable that the forms
given by the statute should be complied with. That taking the
depositions from beginning to end, the statute has been comphed
with.
Judgment affirmed against both prisoners.
Solicitor : F. I, Power, Gympie.
[Maeybokough Ciecuit Court.]
R. V. KENNEDY AND ROYSTON.)
[1 Q.L.J. 12.]
In the case of R. v. Kennedy and Royston, where Kennedy, 1881.
who was first on the information was undefended, and Royston 28thApi-il.
was defended by counsel. His Honor held that it was the practice PHng J.
of this colony, if no witnesses were called for the defence of -either
prisoner, that the undefended prisoner (in this case Kennedy),
being first on the information, had the right of first addressing
the Court and jury.
124 QUEENSLAND JUSTICE OP THE PEACE.
[In Chambbes.J
THE QUEEN v. LOUIS HUSTIN, CALLED LOUIS JOSEPH
WATIER.
n Q.L.J. 16 — Note. — See Commonwealth Extradition Act (No. 12 of 1903).]
1881.
8th lOih 15th Extradition Acts of 1870 and 1873, and the Extradition Act (Queensland) 1877,
June. and Extradition Treaty with Eranoe.
Pring J. On the application of G. E. Markwell, solicitor for Louis Hustin,
a confinee in Brisbane gaol, made on the 8th June, Pring J.,
granted a writ of habeas corpus, commanding F. R. Bernard,
keeper of H.M. gaol at Brisbane, to produce the body of Hustin
in court on the 10th instant.
On the said 10th day of June, Mr. Bernard having produced
the body, as commanded, and also the writ . of commitment,
Markwell moved the discharge of the prisoner on the several
grounds as contained in the affidavit of Hustin, which are fuUy
set out in His Honor's judgment infra : —
Cooper A.G., for the Crown, submitted that under article 16 of
the treaty, which provides that " the requisition for the surrender
of a fugitive criminal who has taken refuge in a colony or foreign
possession of either party, shall he made to the Governor or chief
authority of such colony or possession ; or if the fugitive has escaped
from a colony or foreign possession of the party on whose behalf the
requisition is ynade, by the Governor or chief authority of such colony
or possession," any of the persons mentioned in the article might
make the requisition, where the prisoner has escaped from a
colony ; that if the Governor of the colony was the only person
who could make the requisition, the words " Escaped from a
colony " could apply only to cases where the prisoner had been
sentenced by the local authorities in the colony, otherwise there
would be no reason why the Governor could alone make the
requisition.
As to the vaHdity of the warrant for arrest, he submitted that
under article 7 of the treaty, and s. 17 (2) of The Extradition Act
of 1870, the Governor of a British colony has the same power as a
police magistrate in England has under the Act ; and that there-
fore when once the prisoner has been arrested under the warrant
of the Governor and brought before the PoUce Magistrate, he had
jurisdiction to hear the case ; and further that it was not neces-
sary that he (the P.M.) should have sufficient evidence that the
prisoner had been sentenced for the particular crime charged in
the warrant ; it would be sufficient if he were found to have been
sentenced for any extraditable offence.
CEIMINAL REPOETS, 1860-1907.
125
Peing J. reserved his decision till the 15th instant, and on that
day he delivered the following judgemnt : —
Louis Hustin, called Louis Joseph Watier, was brought before
me on Friday, the 10th instant, by P. R. Bernard, keeper of Her
Majesty's goal, Brisbane, in obedience to a writ of habeas corpus,
ordered by me on the 8th instant to be issued on the application
of Mr. G. Markwell for the confinee, which writ was made return-
able before myself. Mr. Bernard handed in the writ and the
return which I ordered to be filed. The return was a warrant of
committal of Louis Joseph Watier, under the hand and seal of
Phihp Pinnock, Police Magistrate, of Brisbane, and was as fol-
lows : —
QITEBNSLAND TO WIT.
To Jlichael Doyle, constable, and to all other constables of the Queensland
Police Force, and to the keeper of the Brisbane Gaol.
Be it remembered that on the 26th day of May, in the year of our Lord 1881,
Louis Joseph Watier, late of the colony of New Caledonia, a colony or possession
of the realm of France, is brought before me, Philip Pinnock, Esq., Police Magistrate
for Brisbane, sitting at the Police Court at Brisbane, to show cause why he should
not be surrendered in pursuance of the Extradition Acts of 1870 and 1873, and
of a treaty entered into on the 14th day of August, 1876, between Her Majesty
and the then President of the French Republic, on the ground of his being con-
victed of the commission of the crime of fraudulent bankruptcy and forgery,
and uttering within the jurisdiction of the realm of France. And forasmuch as
no sufficient cause has been shown to me why he should not be surrendered in
pursuance of the said acts and treaty, —
This is therefore to command you, the said Michael Doyle, and to all other
police officers in the said colony, in Her Majesty's name forthwith to convey
and deliver the body of the said Louis Joseph Watier into the custody of the
said keeper of the gaol at Brisbane aforesaid, and you the said keeper to receive
the said Louis Joseph Watier into your custody, and him there safely to keep until
he is thence delivered pursuant to the provisions of the said Extradition Acts
and treaty, for which this shall be your warrant.
Given under my hand and seal at Brisbane, in the said colony of Queensland,
this 26th day of May, a.d. 1881.
Philip Pinnock, Police Magistrate.
Mr. G. Markwell then moved for the discharge of the confinee,
and sought to impeach the return on several grounds which are
set forth in the affidavit of the confinee, and he referred to this
affidavit, an affidavit of Tom Else, verifying an attached copy of
proceedings taken before the Police Magistrate, and an affidavit
of G. Markwell, verifying attached copies of a warrant under the
hand and seal of Sir A. E. Kennedy, Governor of Queensland,
and of a warrant of committal under the hand and seal of Phihp
The Qdeen u.
LoDis HnsTiN,
CALLED Louis
Joseph Watiek.
Pring J.
126 QUEENSLAND JUSTICE OP THE PEACE.
The Qdeen r. Pinnock, Police Magistrate, of Brisbane, which affidavits had been
LOUIB HUSTIN, ° i- 1
CALLED Louis filed and used on the application for the writ. Mr. Attorney-
JosEPH Watieb. Qenerai (Pope Cooper) appeared for the Crown, and making no
Pring J. objection, I allowed these affidavits to be used. The 'objections
above referred to are as follows : —
That the commitment is illegal on the following grounds : —
1. The requisition for my surrender was not made in accordance with the
provisions of the 16th article of the Extradition Treaty, but was made by Edward
Barrow Forrest, the vice-consul of the Republic of France, stationed in Brisbane,
and the said vice-consul made his requisition for my surrender to His Excellency
the Governor of Queensland, whereas the said requistion should have been made
to His Excellency the Governor aforesaid by the Governor or chief authority of
New Caledonia.
2. The said warrant states that I was convicted of the commission of the crime
of robbery, but there is not the least evidence against Louis Joseph Watier to
that effect. And the evidence adduced shows that Louis Joseph Watier was
detained in New Caledonia on the charge of fraudulent bankruptcy and falsification
of documents.
3. That the nature of the particular offence against the bankruptcy laws of
France is not set forth, so that it is impossible to say whether it is of such a nature
as would be deemed an offence against the bankruptcy laws of this colony.
4. That falsification of documents is not a crime set forth in the said Extradition
Treaty.
5. Under article 7 of the said treaty it is provided that the warrant shall clearly
set forth the crime of which the person claimed has been convicted, and state the
fact, place, and date of his conviction ; and I say that the warrant of His Excellency
aforesaid, by virtue of which I am now in custody, does not state the date of the
alleged conviction against me.
At the time I allowed these affidavits to be received I was of
opinion that they were not admissible to impeach the return, but
I thought they might be admissible for the purpose of showing a
want or excess of jurisdiction in the PoUce Magistrate. The
warrant of committal (the return) is in the form set forth in the
second schedule to The Extradition Act of 1870, and by s. 20 of
this Act, this form of committal, when used, shall be deemed to be
valid and sufficient in law. I am of opinion, therefore, that the
return is good on the face of it, and I decline to use the affidavits
for the purpose of impeaching this return, as I think they are
inadmissible for that purpose. This is a case which comes within
the statute 31 of Car. 2, c. 2, and the cases show that the Court
will not receive affidavits impeaching the return. {See case of
The Sheriff of Middlesex, 2 A. and E., p. 273 ; in the matter of
Clarke, 2 Q.B., p. 619 ; Brennan's case, 10 Q.B., p. 439, and Carus
CRIMINAL REPOETS, 1860-1907. 127
Wilson's case, 1 Q.B. 984, and the judgment of Lord Denham, ?^= Q??^" "•
JO ) Louis Hustin,
CJ ., p. 1008.) Unless, therefore, it can be proved by the affidavits called Lodis
that there has been a want or excess of jurisdiction, as I hold the Joseph Watieb.
return to be good, this motion must be discharged, and the con- Pring J.
finee, Louis Joseph Watier, will be remanded. I find no facts
disclosed in the affidavits which would warrant me in deciding
that in this case there was either a want or excess of jurisdiction.
The confinee was arrested by virtue of a warrant under the hand
and seal of Sir Arthur Kennedy, Governor of Queensland, and this
warrant is as follows : —
By His Excellency Sir Arthur Edward Kennedy, Knight Commander of the
3Iost Distinguished Order of Saint Michael and Saint George, Companion of the
Most Distinguished Order of the Bath, Governor and Commander-in-Chief of the
Colony of Queensland and its dependencies.
To all and each of the constables of the police force of Queensland.
Whereas a treaty was concluded on the 14th day of August, 1876, between Her
Majesty and the then President of the Fiench Republic for the mutual extradition
of fugitive criminals. And whereas, by an Order-in-Council of the 16th day of
August, 1878, setting forth the said treaty. Her said Majesty, by and with the
advice of Her Privy Council, under and by virtue of the authority committed to
Her by the Extradition Acts of 1870 and 1873, did order, and it was thereby
ordered, that from and after the 31st day of May, 1878, the said recited Acts
should apply in the case of the said treaty with the President of the French
Republic. And whereas in pursuance of the said treaty and the aforesaid Acts
a requisition has been made to me. Sir Arthur Edward Kennedy, Knight, Governor
of the colony aforesaid, by Edward Barrow Forrest, Esquire, whom I, the Governor
aforesaid, recognise as vice-consul for France in Queensland, for the siu-render
of Louis Joseph Watier, late of the colony of New Caledonia, a colony or possession
of the realm of France, convicted of the commission of the crime of robbery within
the jurisdiction of the said realm of France. These are therefore to command
you forthwith, in Her Majesty's name, to apprehend the said Louis Joseph Watier,
wherever he may be found in the colony of Queensland, and bring him before the
Police Magistrate at Brisbane, in the said colony, to show cause why he should
not be surrendered in pursuance of the aforesaid treaty and Ascts, for which this
shall be yom- warrant.
Given under my hand and seal, at Toowoomba, this 14th day of April, in the
year of our Lord 1881, and in the forty-fourth year of Her Majesty's reign.
A. E. Kennedy.
He was then taken before the Police Magistrate of Brisbane
(Mr. Pinnock), and charged with escaping from the settlement of
New Caledonia. It appears to me that under The Extradition
Acts of 1870 and 1873, and The Extradition Act (Queensland) 1877,
and the Extradition Treaty with France, that the Governor's
warrant for the confinee's arrest was good, and that the Police
128
QUEENSLAND JUSTICE OF THE PEACE.
The Queen v.
LoDis Hdstin,
called lodis
Joseph Watieb.
Pring J.
Magistrate, when the confinee was brought before him to be dealt
with under these Acts and this treaty, was, so to say, seized of the
case, and had jurisdiction to hear and adjudge upon it. By sub-
section 2 of the 17th section of The Extradition Act of 1870, it is
provided in reference to proceedings to be taken as to fugitive
criminals in British Possessions, that " No warrant of a Secretary
of State shall be required, and all powers vested in or acts author-
ised or required to be done under this Act by the Pohce Magis-
trate and the Secretary of State, or either of them, in relation to
the surrender of a fugitive criminal may be done by the Governor
of the British Possession alone." Since The Extradition Act
(Queensland) 1877 has by Order-in-Council become law, the mode
of procedure required by the Acts and treaty to be followed by the
Secretary of State and Pohce Magistrates in England would be the
most expedient course to follow (which course of procedure I
indicated during the argument). I do not think, however, that
the power conferred on the Governor by s. 17 (2) of The Extradi-
tion Act of 1 870 is taken away. The warrant of arrest in this case
I hold to be good in this respect. With regard to the first objec-
tion, I decide that Mr. E. B. Forrest, being recognised by the
Governor as vice-consul of France in this Colony, had authority
to make the requisition for the surrender of the fugitive criminal,
Louis Joseph Watier. Subsection 1 of section 17 of The Extradi-
tion Act of 1870, and article 16 of the treaty, give power to a
Governor in a colony to make the requisition, but this, however,
does not, I think, interfere with the power given to a consul or
vice-consul by the same subsection and article. The first objection
therefore is bad. The other objections appear to me to go to the
judgment and decision of the Pohce Magistrate, which I do not
feel myself at liberty to review. The formal judgment is that
this motion be discharged, that the writ of habeas corpus be
quashed, and that the confinee Louis Joseph Watier be remanded
to his former custody, under the warrant of committal exhibited
and filed as the return to the writ.
CRIMINAL REPOETS, 1860-1907.
129
[Full Court.]
CUNNINGHAM v. McFARLANE AND ANOTHER.
[1 Q.L.J. 49.— Note.— 17 Vic, No. 3, is repealed. See now s. 445 of Criminal Code.]
Cattle Stealing Prevention Act (17 Vict., No. 3).
To support a conviction for illegally using an animal under The CatUe Stealing
Prevention Act (17 Vict., No. 3), the user must commence by trespass.
Motion to make absolute a rule nisi for a prohibition granted
by His Honour The Chief Justice, at the instance of John Cunning-
ham against H. T. McFarlane (Acting P.M. at Roma) and W. S.
Paul, of the firm of Sloane & Co. Cunningham was in charge of
a flock of 20,000 sheep belonging to Sloane & Co., and when he
arrived in the neighbourhood of Roma he was superseded by one
Jones. Jones found him in a pubUc house, and produced a
document countermanding Cunningham's authority. Jones '
asked if there was any horse at the pubUc house belonging to
Sloane & Co. A horse was brought round which was identified
as belonging to Sloane & Co., and Jones thereupon proceeded to
remove the saddle and bridle, the property of Cunningham.
Cunningham then interfered, mounted the horse and rode away.
Cunningham, on his way to Roma, met Paul, who demanded
possession of the horse, but refused to produce his authority,
stating that he was Sloane & Co. Cunningham, who had been
appointed by one Kilgour, the New South Wales representative
of Sloane & Co., refused to recognise Paul, and rode away towards
Roma. Paul followed, and in Roma endeavoured to obtain
possession of the horse, and eventually gave Cunningham in charge
for illegally using, Cunningham, according to his account, having
ridden the horse in order to pay the wages of a man who had been
employed with the sheep. At the time of his arrest no actual
deUvery of the sheep to Jones had taked place. Cunningham was
fined £2 by the Roma Bench. The rule was granted upon the
following grounds, viz. : — (1) That there was no evidence tp show
that Cunningham had used the horse for his own pleasure, con-
venience, or profit, and (2) That he made a bona fide claim to be in
lawful possession of it.
Power moved the rule absolute.
Griffith Q.C. {Ringrose with him) showed cause on behalf of
Paul, and submitted that at the time the offence was charged the
horse was in the possession of Sloane & Co., by their agent, Jones,
who had taken possession of it at the pubhc house — that there
1881.
December.
Lilley C.J.
Harding J.
Pring J.
130
QUEENSLAND JUSTICE OP THE PEACE.
cunninoham v.
McFablane
AND AnoIHEB.
Harding J.
Pring J.
was a sufficient determination of the bailment, and the horse
being in the physical possession of Sloane & Co.'s agent, Cunning-
ham was guilty of an offence against the statute.
He quoted The Queen v. Steer (1 Denison's Crown Cases, 349).,
and submitted that there was ample evidence from which the
justices might find that the offence had been committed, the only
question was whether the bailment had been determined. If it
had been he was using the horse for his own pleasure, convenience,
or profit, and that a deliberate trespass of this kind was an offence
against the statute, and that the rule should be discharged.
Habding J. : This case comes before us on motion to make
absolute a rule nisi for a prohibition obtained from the Chief
Justice against a conviction made by certain magistrates against
one Cunningham for the unlawful user of a horse under The Cattle
Stealing Prevention Act. As I gather from the facts, Cunningham
was in possession of this horse and certain sheep and their appli-
ances, lawfully. It was alleged that an agent of the owners had
been appointed to retake possession of these sheep and horse
from Cunningham ; that Cunningham was, undoubtedly, immedi-
ately previous to the attempt to take possession, in possession of
a certain horse. I think that the evidence shows nothing further
than an attempt to regain possession of this horse from the agent,
and that if it does that, Cunningham had not admitted the ap-
pointment of the agent, which was in dispute, and consequently
there was a bona fide claim made to the horse by Cunningham,
which at the time the possession was alleged to be regained by
the agent had not determined. Unless the horse were taken
from the possession of a third party the party using it would not
be liable under this Act, in other words, as said by the Chief
Justice, the user must commence by trespass. The rule must
therefore be made absolute, with costs against Paul.
Peing J. : I am of the same opinion. I think the possession
was never out of Cuiuiingham to such an extent as to warrant the
action taken in this matter. The Act was never passed to meet
such a case as this. Rule absolute, with costs against Paul.
Solicitor for Cunningham : Chambers, agent for F. H. P.
Thompson, Roma.
Solicitors for Paul : Little, Browne, <fe Ruthning.
CEIMINAL REPOETS, 1860-1907. 131
[Full Cotjbt.]
REGINA V. GASH.
[1 Q.L.J. 54. — Note. — Offences agiunst the Person Act, s. 49, is repealed. See now
s. 215 of Criminal Code.]
Offences against the Person Act, s. 49, ^^**l-
6lh December.
Where an information contains in the very language of the statute a charge of
misdemeanour, except in respect to the introduction of the word feloniously, Ltlley G.J.
and there is no language that would contain a substantive crime in the nature of
ielony, the word fdoniously will be rejected as surplusage.
Crown Case Reserved.
This was a special case stated by Mr. Justice Harding.
The prisoner was tried at the Brisbane Criminal Sittings, on
the 2nd December last, upon an information charging him that
he, on the 23rd of August, 1881, at the South Pine River, in and
upon one Martha Chesterfield, a girl under the age of twelve
years, to wit, of the age of eleven years and eight months, felon-
iously did make an assault, and her, the said Martha Chesterfield,
then feloniously did unlawfully and carnally know and abuse.
The Attorney-General opened the case as an offence defined in
s. 49 of the Offences against the Person Act, and the case was so
treated throughout the trial by the Judge and counsel upon
both sides, Mr. Swanwick appeared for the prisoner. Martha
Chesterfield was examined and cross-examined. In her examina-
tion in chief she stated that she was twelve last Monday, and
gave the names of her parents, brothers, and sisters, and other
particulars. A duly certified copy of an entry in a Register of
Births, kept in the General Registry Office, Brisbane, was tendered
by the Attorney-General and received in evidence without objec-
tion. The entry was of a birth on the 28th November, 1869,
at German Station Road, of a female child named Martha, whose
parents' names were Thomas and Mary Anne Chesterfield. It
also contained the names and ages of their other children,
agreeing in such particulars with the statement of Martha
Chesterfield. Mary Anne Chesterfield (the mother) was examined,
and referred to Martha as one of her children. On one or two
occasions German Station was mentioned as a former residence
of the family. In charging the jury His Honor told them that the
above was all the evidence as to Martha's age before them, and
that if they were satisfied of her identity with the person named
Martha in the certificate of birth from a consideration of the
facts above stated, her age was fixed thereby, but they must be
132 QUEENSLAND JUSTICE OF THE PEACE.
Kegina v. Gash, satisfied that her age was between ten and twelve years, or find
the prisoner not guilty.. After the jury retired, Mr. Swan wick
called His Honor's attention to the fact that he had not told the
jury that there was no evidence of the identity of the person in the
certificate with Martha, and asked His Honor to reserve the point
for the consideration of the Full Court. The jury found the
prisoner guilty. Mr. Swanwick moved the arrest of judgment on
the following grounds : — (1) That the information charged the
prisoner with a felony, and the crime of which he had been found
guilty under the 49th section was a misdemeanour by statute.
(2) The prisoner being charged with a felony by the Crown, the
jury had left the Court, not in charge of any officer of the Court,
after the information was exhibited and before the verdict.
These points were not raised or urged to the jury at all, or to the
Court, until the times mentioned. His Honor postponed judgment
until the questions should have been considered by the Full Court.
The Attorney-General appeared in support of the conviction.
There was no appearance on behalf of the prisoner.
With regard to the first point the Court held that, inasmuch
as nothing was said to the jury, and no objection raised by the
prisoner's counsel during the trial, he must be taken to have
accepted the evidence regarding the girl's age as sufficient. It
could not allow counsel to lie by, they must deal fairly and
candidly with the Court. But independently of that there was
evidence to go to the jury as to the girl's age.
As to the second point. The Attorney-General submitted that
the word feloniously, in the information, was mere surplusage.
The Chief Justice referred to the case of the Queen v. Wilkie,.
the converse of this, in which the Judge (Lutwyche J.) at the
trial, upon his own motion, struck out the word feloniously in
the information as unnecessary. The man was convicted of
felony, the information containing a concise description of the
offence, but the word feloniously was omitted because the Judge
struck it out. The case came before the Full Court (Cockle C.J.,
and Lutwyche J.), and it was held that the word feloniously
was a word of art, and should have been put in, and the prisoner
was discharged.
The Attorney-General quoted Scofield's case (2 East's Pleas
of the Court, 1029), in which case it was held that the insertion
of the word feloniously did not constitute a felony, and if the
offence charged amounted to a misdemeanour and not a felony^
CEIMINAL REPOETS, 1860-1907. 133
the prisoner would be properly convicted and the word feloniously ^''Egina v. Gash.
rejected as surplusage, and submitted that the defect was cured
by the verdict, because the jury must have found the act to have
been urLla^\iul — that everything necessary to found a charge of
misdemeanor had been done.
The Court reserved judgment merely on the question of the
word feloniotisly having been used.
LiLLEY C.J. : I have had the opportunity of considering the Lilley C.J.
point made by the counsel for the prisoner. The facts appear
to be clearly these. Until the close of the trial no one averted to
the fact that the word feloniously had been introduced into the
information at aU. The man suffered no disadvantage whatever,
but was tried without a word of comment or objection for the
substantive misdemeanor under the statute. The section of the
statute was used, and the information contains in the very language
of the statute a charge of misdemeanor, except in respect of the
introduction of the word feloniously. I think that the word may
be rejected as surplusage. There is no case against it, and it
seems to me to be a construction of common sense. The language
of the information contains the substantive misdemeanor, and
there is no language that would contain a substantive crime in
the nature of felony in the information. The conviction must be
affirmed.
Peing J. : I concur. I consider a substantive offence against PringO
the 49th section of the Offences against the Persons Act is shown
in the information, and although it may contain the words
" feloniously did make an assault and her the said Martha
Chesterfield " — and also the word " feloniously " in the next
line — still, these words being left out, a substantive offence
appears in the information sufficient to charge an offence against
the 49th section. The conviction must therefore be affirmed.
Conviction affirmed accordingly.
134
QUEENSLAND JUSTICE OF THE PEACE.
1881.
7th Noiember.
Harding J.
[In Chambers.]
In re MINNIS.
[1 Q.L.J. 56 Note.— See also R. v. Kenniff, 1902 Q.W.N. 71, post.]
Gaol Regulations — Bight of Legal Adviser to interview prisoner
out of hearing of gaol officials.
Swanwick (legal practitioner) applied to Mr. Justice Harding
for a rule calling upon the Sheriff of Queensland to show cause
why he (Mr. Justice Harding) should not order the keeper of Her
Majesty's Gaol to permit Swanwick to interview Michael Minnis
(then in gaol on a charge of murder) at all reasonable hours up
to the day of his trial without the presence of the said gaoler
or other officials. Mr. Justice Harding made the rule absolute,
granting leave to Swanwick to interview the prisoner at all reason-
able hours, the gaoler and his officials to be at liberty to see the
parties during such interview but not to hear them, the gaoler
however to have aU the powers given to him under the Gaol
Regulations.
1882.
11th July.
Lillet/ G.J.
Harding J.
[Full Cottet.]
DOWLING V. FRITZ AND OTHERS.
[1 Q.L.J. 82.— Note.
-29 Vic., No. 5, s. 43, is repealed,
of Giiminal Code.]
See now ss. 390 and 46S
Malicious injuries to_ property — 29 Vic, No. 5, s. 43.
A snake does not come within the meaning of the iSrd section of 29 Vic, No. 5.
This was a motion to make absolute a rule nisi, granted at the
instance of Patrick DowUng, of Dalby, for a writ of prohibition
against C. R. Haly, P.M., of that place, James Skelton, J.P.,
and John Fritz, complainant in the Court below, in respect of a
conviction whereby Dowling was fined £10 for " maliciously
wounding a Tasmanian diamond snake " belonging to Fritz.
It appeared that Fritz, who was a showman, being about tO'
open a show on the Dalby racecourse, was putting his para-
phernalia over the fence, when some dispute occurred between
him and Dowling, who had purchased the gate privileges, and
the latter threw a box containing a snake over the fence, injuring
the animal so much that it was expected to " pine away and die."
Fritz stated that he had paid Mr. Jessop for the right to exhibit
CRIMINAL REPORTS, 1860-1907. 135
his show on the course, but not being allowed to take a dray Dowlinq v Fmtz
inside he was compelled to put his boxes over the fence. Dowling,
however, maintained that, as purchaser of the gate, he was
justified in the action he took, and said he did not throw the
snake over, but put it quietly through the fence. The informa-
tion was laid under the 43rd section of the Injuries to Property
Act (29 Vic, No. 5), which provides for punishing those who
" shall unlawfully and mahciously kiU, maim, or wound any dog,
bird, beast, or other animal, not being cattle, but being either
the subject of a larceny at common law, or being ordinarily kept
in a state of confinement, or for any domestic purpose." The
rule nisi was granted on the grounds : —
(1) That a snake was not a subject of larceny at common law, and not an animal
ordinarily kept in confinement ; and (2) that the injury, if any, was done in the
exercise of a bona fide right, the snake being at the time a trespasser.
Griffith Q.G. moved the rule absolute.
Garrick Q.G. showed cause, and cited in support of his argument,
Goke's Reports, 487 ; Rex v. Seering, R. ds Ry., Gr. Ga. 350 ;
Wilkinson's Queensland Magistrate, 392 ; Oke's Synapsis.
LiLLEY C.J. referred to an article in the Law Journal, April
I5th, p. 196, in which two EngUsh decisions, the one relating to a
Hon, and the other to a mouse, are commented upon.
Garrick Q.G. was stopped by the Court, who said the matter
would be decided on the first point.
Griffith Q.G. was not called upon.
LiLLEY C.J. : The Court has no doubt about the matter on the Lilley C.J.
first point. A snake was not covered by the description
" ordinarily kept in a state of confinement." The description
was genuine, and referred to animals which were allowed to go
in and out of their places of confinement — that was, animals
that were confined as a rule but not always. Snakes, as a class,
were certainly not kept in confinement. The rule would therefore
be made absolute on the first point.
Power argued for Fritz, that costs should not be granted
against him as the ground was a novel one.
The Court refused the application, and the rule was made
absolute with costs against Fritz.
Solicitor for DowUng, Thos. Bunton.
SoUcitors for Haly, P.M., Foxton & Gardew.
Sohcitor for Fritz, A. W. Ghamhers.
136 QUEENSLAND JUSTICE OP THE PEACE.
[Full Coubt.]
VICKERS V. SELLHEIM AND OTHERS.
[1 Q.L.J. 131.— Note.— 35 Vic, No. 4, s. 27, is repealed. See now s. 447 of Criminal
Code.]
^^^^- Brands Act, (35 Vic, No. 4), s. 27.
8th May.
The fact of a brand being found put over the registered brand of the owner
Prina^J °f * beast does not raise the presumption that the owner of the former brand
— '- either put it there or allowed it to be put there.
Motion to make absolute a rule nisi for a prohibition granted
by His Honour The Acting Chief Justice at the instance of George
Vickers against PhiUip Frederick Sellheim P.M., at Charters
Towers, Joseph Booth Whitehead, J.P., and John Inch, both of
the same place. A calf, the property of Inch, was branded by
him with his registered brand, and lent by him in company
with his mother to one Cass, a dairyman. While in Cass' posses-
sion, the cow and calf were lost sight of for some time, and
eventually the calf was found near Vickers' house with his registered
brand newly put over that of Inch. There was no direct evidence
of branding, and Vickers did not appear. The bench, consisting
of Sellheim and Whitehead, convicted Vickers of wilfully permit-
ting the calf to be branded with his registered brand, and fined
him £10, and £3 Is. 6d. costs. The rule was granted on the
ground that the evidence did not support the conviction.
Griffith Q.G. (Gore Jones with him), moved the rule absolute.
Feez showed cause, and submitted that under the 27th section
of the Brands Act, if there was sufficient evidence to support
the justices finding that the calf was permitted to be branded by
Vickers, the Court would not interfere with the finding that he
had wilfully permitted the same. This was decided by the late
Chief Justice, Sir James Cockle, in Ex parte Kelly, Wilkinson,
page 9. So that all the Court would have to find was, did Vickers
permit the calf to be branded with his registered brand. Of this
there was no direct evidence, but there was such presumptive
evidence as would support the conviction. The fact of Inch's
calf branded with his brand being found near Vickers' house
newly branded with his brand over Inch's brand raised such a
reasonable presumption that Vickers permitted it to be branded
that it was for him (Vickers) to rebut that presumption, and this
he had not done. If the Court held such evidence as this to be
insufficient the section of the Act might as well be cut out of the
CEIMINAL REPOETS, 1860-1907.
137
Statutes, for it was almost impassible to get direct evidence of
any offence under the section. On these grounds the rule should
be discharged.
Griffith Q.G. contended that to uphold such a conviction would
be to subvert all the principles of criminal law embodied in the
maxim " Every man is presumed to be innocent till proved
guilty." There was absolutely no evidence either direct or
presumptive of Vickers wilfully permitting the calf to be branded,
and the rule should be made absolute with costs.
Habding A.C.J. : This is a motion by Mr. Griffith to make
absolute a rule nisi granted by me on the 2nd April, 1883, for a
prohibition against the magistrates and the complainant pro-
ceeding on a conviction or order made 1st February, 1883, whereby
Vickers, the apphcant for the prohibition, was found guilty
of wilfuUy permitting to be branded with his registered brand a
certain white heifer. The offence was charged under s. 27 of
the Brands Act of 1872, which enacts, " If any person shall
wilfully brand any stock of which he is not the rightful owner or
shall wilfully cause direct or permit any stock of which he is not
the owner to be branded with his brand such person shall on
conviction for every such offence in a summary way forfeit and
pay any sum not exceeding fifty pounds." The requirement to
bring the offender within that section is that he shall wilfuUy
cause, direct, or permit any stock of which he is not the owner
to be branded with his brand. First of all you must have stock
branded with the brand of a person not the owner of that stock,
then you must show that that brand was wilfully permitted to be
placed on the stock by the owner of the brand. The meaning of
the word " wifful " is now understood to be and according to the
most recent decisions is " knowingly, and fraudulently." There-
fore a brand must have been permitted to be on the stock know-
ingly and fraudulently on the part of the person whose brand it is,
that is, that he must have permitted the brand to be placed on
stock of which he was not the owner with the fraudulent intent
in most cases to acquire the ownership in the stock. It was
contended by Mr. Feez, that the mere fact of the brand being found
on the stock would raise a presumption that the person whoSe
brand ft was had branded it and committed an offence. I can
see if a brand is found upon a beast and it is proved that the
owner of the brand put it there the law will presume he
put it there knowingly and fraudulently, but the mere finding
of a brand upon a beast without proving that the owner
VlOKERS V.
Sellheim and
Others.
Harding A.C.J.
138
QUEENSLAND JUSTICE OF THE PEACE.
ViOKERS V.
Sellbkim and
Others.
Harding A.C.J.
Pring J.
of the brand put it there or permitted it to be put there
does not connect the owner of the brand in any way with the
branding. Mr. Feez's presumption would go to this extent :
If John Smith was found murdered every person would be pre-
sumed to have murdered him ; but the proper way to look at
such reasoning is this : If A.B. had killed John Smith the pre-
sumption would be that he had murdered him until the contrary
was shown. Now here the only facts in the case are that the
heifer was the property of Inch, the respondent, that it had his
brand upon it, and that it was subsequently found with Viekers'
brand upon it, and shortly afterwards seen in the neighbourhood
of Viekers' residence, and further, the respondent said that
Viekers might have branded it in mistake. I can see no evidence
to connect him with the offence charged. Under these circum-
stances I think the evidence does not support the conviction,
and that this rule must be made absolute with costs.
Peing J. : I am of opinion that there was no evidence to
support the conviction, and that the rule must be made absolute
with costs.
Sohcitors for apphcant : Daly & Hellicar, agents for Marsland,
Charters Towers.
Solicitor for respondent : J. S. Salmond.
1883.
5th June.
Harding A.G.J.
Pring J.
[Full Cottet.]
REGINA V. EDWARD CAMM.
[1 Q.L.J. 136.— Note.— See now ss. 212 and 214 of Criminal Code. See R. v. Hinck-
ley, 2 Q.L.J. 182, post.]
Upon a charge of having carnally known and abused a female child under the
age of ten years, scientific evidence or the evidence of experts can be adduced
and is receivable as some evidence of the age of the child.
Special Case stated by Mr. Justice Cooper.
The prisoner Camm was tried before Mr. Justice Cooper at
Townsville, upon a charge of criminally assaulting an aboriginal
girl named Rosie, under the age of ten years. The only evidence
of the girl's age was given by two doctors, both of whom swore
positively that she was under ten years of age, basing their
opinion on the condition of her teeth. One stated that she was
between five and seven, and the other that she was about seven,
CEIMINAL REPOETS, 1860—1907.
139
while it was afBrmed that the teeth showed conclusively that „ BEGiNAti.
T. . , 1 rr,! ■ . T . Edward Camm.
Kosie was not ten years old. This evidence was objected to by
Mr. MUford, who defended the prisoner, but admitted by the
Judge as evidence that might be considered by the jury. In
summing up he told them that the age of the child was an in-
gredient of the offence, that it was a material fact, and it was
the duty of the Crown to establish that fact to their satisfaction
beyond a reasonable doubt : that the only evidence on the point
was the medical testimony and the presence of the child : that
the medical testimony was that of experts, and if from any
circumstances, whether from the appearance of the child or
otherwise, they had any doubt about it they were at Hberty to
reject it altogether, in which case the prisoner would be entitled
to an acquittal. The jury found the prisoner guilty, and he was
sentenced to penal servitude for Ufe. The question for the Court
was : — Was there sufficient evidence of Rosie's age to be left to
the consideration of the jury ?
The Attorney-General {Power with him), appeared for the Crown,
and supported the conviction on the ground that the sufficiency
of the evidence was a question for the jury.
The following cases were quoted : — Regina v. Wedge, 5 C. & P.
298 ; Regina v. Nicholls, 10 Cox C. Cases, 476 ; Garter v. Boehm,
1 Smith's L.C., 572 ; Regina v. Goode, 7 A. & E., 536.
The prisoner was not represented.
Harding A.C.J. : — This is a case stated for the opinion of this Harding A.C.J.
Court by Mr. Justice Cooper. The facts are sufficiently stated, in
the case, and have been read at the bar. The real question is
whether upon a charge of having carnally known, and abused a
female child under the age of ten years, scientific evidence or the
evidence of experts can be adduced and is receivable as some
evidence of the age of the child. That it is not the best and most
perfect evidence is seen at once, and where the best and most
perfect evidence is not obtainable as in this case I have no doubt
it is receivable, the value or weight of it being for the jury. The
law as stated by the learned Attorney-General, from Smith's
Leading Cases, 572, namely : — " The difference is, however,
perhaps less upon any point of law than on the appHcation of a
settled law to certain states of facts ; for, on the one hand, it
appears to be admitted that the opinion of witnesses possessing
peculiar skill is admissible whenever the subject matter of inquiry
is such that inexperienced persons are unUkely to prove capable
140
Eegina v.
-Edward Camm.
Harding A C. J.
Pring J.
QUEENSLAND JUSTICE OF THE PEACE.
of forming a correct judgment upon it without such assistance,
in other words, when it so far partakes of the nature of a science
as to require a course of previous habit, or study, in order to the
attainment of a knowledge of it " is now practically adopted in
all our text books. Here the doctors both swore that they were
able to form an opinion as to the age of the child, and one of them
gave certain details as to what induced him to form that opinion,
and it was for the other side to cross-examine the witness as to
his special knowledge upon the subject. It also apears that the
child was in court, and the jury could weigh the evidence and
inspect the child and judge for themselves. In this case the judge
drew the attention of the jury to the nature of skilled evidence,
and pointed out to them the danger of such evidence. I think
the evidence was admissible, and the conviction must be affirmed.
Pbing J. : I think the evidence was admissible, and having
been left to the jury with a proper direction by the judge, I see
no reason to disturb the conviction.
1884.
Sth February.
Harding A.G.J.
[Roma Circuit Couet.J
REGINA V. PARKER.
[1 q.L.J. 194.]
Delivery of Gaol.
Paekee's name appeared on the gaol calendar as standing
committed for trial for attempted suicide. Power, prosecuting
for the Attorney-General, stated that his name was on the calendar
by mistake, that he had been committed to the District Court.
His Honour directed the warrant of committal to be produced.
The gaoler produced it, stating there was no mistake, the warrant
committed the prisoner to Roma gaol till he was dehvered in due
course of law. It was endorsed in the margin in different ink from
the body " for trial at the sittings of the next Southern District
Court at Roma, 1884. James Raeten, A.C.P.S." James Raften,
whose name appeared in the body of the warrant, is a constable.
There was no other warrant against him, Mx. Power presented no
information, and His Honour discharged the prisoner.
CRIMINAL REPORTS, 1860-1907.
141
[Full Couet.]
REGINA V. BARTON.
[1 Q.L.J, supp. 16. — Note. — 29 Vic, No. 11, is repealed. See now chapter III. and
s. 360 of Criminal Code.]
Marriage — Time of celebration of — Validity of marriage — Bigamy
— Bigamous marriage beyond jurisdiction of the colony —
29 Vict., No. 11—28 Vict., No. 15, s. 11.
The 11th sect, of The Marriage. Act, 1864, is merely directory, and therefore a
marriage celebrated before 8 o'clock a.m. or after 8 o'clock p.m., is not on that
account void.
The statute, 9 Geo. IV., cc. 31 & 83, are repealed in this colony by 29 Vic,
No. 11, and the repeal is not limited by the latter or any other statute from affecting
the jurisdiction of the Supreme Court. Consequently, the Court has no jurisdiction
in the case of a bigamy or other offence committed outside of the colony and its
dependencies.
Special Case Reserved.
The prisoner, in the year 1874, was married in Queensland
by a minister. The marriage was regular in every respect except-
ing that it was celebrated after the hour of 8 o'clock p.m. Some
time after the celebration of this marriage the prisoner went
to England and there went through the form of marriage with
another woman, the first wife being still ahve, and then returned
to Queensland. The question reserved for the consideration
of the Court was whether the first marriage, having been celebrated
after- the hour of 8 o'clock p.m., was vahd.
Swanwick appeared for the prisoner.
Lilley C.J. : The question reserved by this case for our
decision is, whether a marriage after 8 o'clock in the evening was
valid ? If it was, then the prisoner's second marriage during the
life of his first wife was bigamous, and the conviction must be
affirmed. If the first marriage was not valid, then the second was
lawful, and the conviction must be set aside. Our decision
must depend upon the effect to be given to the proviso to the
11th section of The Marriage Act of 1864, which is as follows :—
" Provided that no marriage celebrated by any minister or regis-
trar shall be deemed to be legal or vaUd unless celebrated between
the hours of 8 o'clock in the morning and 8 o'clock in the evening."
It will be observed that the prohibition is absolute. It depends in
no way on the will, knowledge, intention, or good or bad faith of
the parties to the marriage. It is fatal to the innocent, who beUeve
1879.
8th August.
Lilley C.J.
Lutwyche J,
Harding J.
Lilley C.J.
142 QUEENSLAND JUSTICE OF THE PEACE.
Eeginaw. themselves to be marrying within the prescribed hours equally
' with the wilful or designing who may be knowingly marrying
LiUey C.J. q^^ ^f time. All the clocks in the village may indicate the hour
to be seven, but if it can be shown by exact scientific observation
that it was in fact one minute past eight, the marriage wiE be
void. At any time, however distant, the proof of this circum-
stance will avoid the marriage. Time has no healing influence
upon it. The evidence of some local philosopher with his chron-
nometer, if believed by a jury, will suffice to invalidate a marriage
solemnised in good faith, sever the long estabUshed and publicly
recognised relation of man and wife, reduce a seemingly legitimate
family to bastardy, and deprive them of their right to their
ancestors' property. The language of a statute must, however,
receive the interpretation conveyed by its ordinary meaning,
however cruel or oppressive may be the consequences. It is
binding upon us to give effect to the intention of the Legislature,
if it is clear and unmistakeable. If the whole law on the subject
is consistent, and pronounced to one end, it must take its course.
Section 12 of the statute which follows the above proviso, is as
follows : — " Every marriage which shall be celebrated by any
minister or registrar as aforesaid, after oath or solemn affirmation
so made, shall be a legal and valid marriage to all intents and
purposes, and no other marriage, except as hereinafter provided,
shall be vaUd for any purpose." This section would seem to be
unnecessary if it were not inserted to show that some of the
preceding requirements are essentials, whilst some of them are only
directory. If this section was intended by the Legislature to
point out all the essentials to the validity of the marriage, it is
inconsistent with the absolute terms and effect of the proviso
in the 11th section. In such a case there is a clear rule of interpre-
tation for our guidance, the later provision of a statute gives the
law and prevails over an inconsistent preceding one. Section 12,
when it speaks of a marriage " celebrated by any such minister
or registrar as aforesaid " means " celebrated by some minister of
religion ordinarily officiating as such " [s. 2], or " celebrated by
such registrar as aforesaid " — that is, in the manner prescribed
by s. 9. The mode of celebration by the registrar is prescribed
by s. 9 — " Where the parties to be married shall before the
Registrar for Marriages of the district within which the intended
wife ordinarily resides sign a declaration in the form set forth
in the schedule to this Act, marked A, the marriage may be
celebrated between such parties by such district registrar in the
CRIMINAL REPORTS, 1860-1907. 148
form of words set forth in the schedule hereto marked B, to be Rboina v.
, T , . , , , . , . Barton.
repeated and signed by the parties to such marriages respec-
tively." The words in schedule B once pronounced and signed LiUeyC.J.
by the parties, the marriage is complete and valid — " I
of do hereby declare, in the presence of A.B., Registrar of
Marriages for the district of , that I take of to
be my lawful wife, and I the said do declare that I take the
said to be my lawful husband." It is then " celebrated "
after oath or solemn afl6Lrm.ation so made. The oath is required
by s. 10, and is set out in schedule C. It seems to me quite clear
that the words as aforesaid in s. 12 have no reference to the hours
of celebration in the preceding proviso, and do not incorporate
them as essentials of a vaUd marriage. On looking to the
previous Marriage Act, 19 Vic, No. 30, ss. 2 to 6, from which s. 12
is copied without alteration, it will be seen that the words as
aforesaid refer to the mere form of celebration by the registrar.
Neither time nor place is mentioned in that statute. They can
have no reference to the mode or form of celebration by the
minister, because neither statute prescribes any mode or form
of celebration by him, and if they do not refer to the form or
mode of celebration by him in the present Marriage Act, they do
not incorporate the preceding proviso as to time. We should thus
have this result, that tim.e is essential to a marriage by the regis-
trar, but not by the minister, although they are both included
in the proviso. The words ' as aforesaid ' must thus be held
to be capable of receiving two inconsistent interpretations,
which is absurd. But further, if the words as aforesaid refer to
s. 11, they include the whole of that section, so that a marriage
in an ofl&ce not pubUcly used by the registrar, or with closed
doors, would be invalid, inasmuch as s. 12 declares that " no
other marriage (except as thereinafter provided) shall be valid
for any purpose." It is not unimportant to note that s. 12 is
preceded by a marginal note, " essentials for valid marriage."
Of the aid towards the interpretation of our modern Acts from
the marginal notes to the statute, I may quote the language of the
present Master of the Rolls : " 7w re Venour's Settled Estates
(L.R. 2 Ch. Div. 525) , this view is borne out by the marginal note ;
and I may mention that the marginal notes of Acts of Parliament
now appear on the Rolls of Parliament, and, consequently, form
part of the Acts ; and, in fact, are so clearly so that I have known
them to be the subject of motion and amendment in Parliament."
It is certainly valuable where it confirms an independent interpre-
M4 QUEENSLAND JUSTICE OF THE PEACE.
Eegina v. tation. The effect of my construction of s. 12 is not to repeal the
proviso to s. 11, but to reduce it to a direction obligatory upon
LiUey C.J. ^^^ minister or registrar not to celebrate a marriage except between
the hours of 8 in the morning and 8 in the evening, but the marriage,
if celebrated outside those hours, is still valid and binding. In
other words, the time is not an essential of a valid marriage.
I am aware that we are, as far as we possibly can, to interpret
the statute so as to preserve the actual language and its plain
meaning, and to harmonise it with the rest of the words of the Act.
We are to avoid imputing to the Legislature either ignorance of the
effect of their words or rashness of expression, but where their
last words are clear, and produce harmony of intention and
consistency of purpose in their legislation, they most prevail.
We must look at the whole chapter of the marriage law, both to the
preceding and subsequent statutes. On looking at s. 4 of the
latest Act, The Justices Marrying Act of 1872, we shall find it
enacted that, " It shall not be lawrful for any justice to celebrate
any marriage earUer than 8 o'clock in the morning, or later than
6 o'clock in the afternoon." The justice celebrating a marriage
out of time would do an unlawful act, followed by certain personal
consequences, but the marriage would be vahd. The whole
marriage law passed in review at that time [see s. 5], and was
incorporated in the Act of 1872, so far as it applied. Would the
Legislature provide that a marriage out of time before a justice
should be valid, and leave the law so that a marriage before a
registrar or minister out of time should be void ? It seems to
me that the Legislature had the same view of the law in their
minds that I have taken — that is, that the proviso to s. 11 of the
Act of 1864, read with the whole of that statute, made it merely
a breach of the law by the registrar or minister to marry persons
out of the fixed hours, but did not invalidate the marriage. It is
better to regard the proviso of 1864 as inaccurately, or even
carelessly expressed, than to impute something like folly to the
framers of the law. If the proviso avoids the marriage, it applies
only to persons marrying before a minister or registrar, and Jews
and Quakers may marry at any time. Nay, more, a marriage by
any persons before a person not lawfully authorised to celebrate
marriages, if but one of the parties were innocent, and beheves him
to be so, will be valid at any hour. Clandestine or runaway
matches, or the marriages of minors without consent, or upon a
forged consent, are not invalid. But marriages by persons of full
age, free from any legal impediment, and uniting themselves in
CEIMINAL EEPORTS, 1860-1907. 145
Beoina v.
Barton.
perfect good faith, with the sanction of every one interested in
securing a valid marriage, if beyond hours, are void. Every
other provision may be wilfully violated, and the marriage *'' '
shall be good. To be beyond time is the one fatal circumstance
in the whole law. It destroys what the policy of the law favors
and seeks to promote and uphold — marriage. Perjury, forgery,
a sham minister or registrar, the wilful marriage of minors without
consent, will not invalidate the marriage. Offences against
the Act are visited with penalties, which may be borne, because
they are nowhere inflicted, unless the law be " knowingly " or
" wilfully " violated. But the accidental circumstance of marriage
one minute out of time may bring upon innocent persons and their
offspring the loss of social status, rights, and property accruing
from the marriage relation. It seems to me, upon fair and neces-
sary rules of legal interpretation, I can say that the Legislature
had no such intention. The first marriage was vahd. This
interpretation declares the like law to exist for the minister,
registrar, or justice celebrating the marriage, and the one rule of
vaUdity for the marriage bond. The case was properly left to
the jury, and the conviction on the point raised at the trial would
be affirmed. But a more important — at all events, a seriously
important — question is raised upon the face of the case itself,
and that is, whether our Court has jurisdiction to try this offence.
On looking at the statement of the case it will be found that the
second marriage was celebrated in England ; the prisoner was
married in England by a minister of the EstabUshed Church.
Now, our statute, the Act relating to offences against the person,
declares that where the crime of bigamy shall have been committed,
whether the second marriage be in Queensland or elsewhere, it
shall be felony. It is a very clear rule of law that a legislature
of Umited jurisdiction can speak only within the limits of its own
territory, so that the words in this section must be read as though
standing " Queensland or its dependencies," to give them anything
like legal force. There can be no question whatever about the
matter, because all colonies can deal only with offences committed
within their own territory, except where the Imperial Parliament
has given jurisdiction. Previous to the 9 Geo. IV., c. 83, the
Superior Courts at Westminister had criminal jurisdiction in the
case of bigamy wherever the second marriage might have taken
place. That jurisdiction was given by the 9 Geo. IV., c. 31.
By the 9 Geo. IV., c. 83, the Courts of New South Wales and the
other colonies had given to them the same criminal jurisdiction
146
QUEENSLAND JUSTICE OP THE PEACE.
Eegina r.
Barton.
Lilley C.J.
Lutwyehe J
that the Court of Queen's Bench at Westminster had at the time
of the passing of that statute. The effect of that was, in my
opinion, to give to the Supreme Court of New South Wales and
of this colony jurisdiction in the case of bigamy wherever the
second marriage might have taken place. By our first Supreme
Court Act, passed, I think, in 1863 or 1864, the 9 Geo. IV., c. 83,
was repealed, but it was enacted that nothing therein contained
should diminish the jurisdiction of the Supreme Court. The
jurisdiction rested upon the Imperial Statute creating the crime
of bigamy, which is a creature of statute entirely. But in 1865
the local Legislature here entered upon the work of repeal and
amendment and consolidation. By seven different Acts they
undertook to consolidate and amend the criminal law of the
colony, they prepared the consolidation, and passed the various
Acts, one of them being the Act giving jurisdiction to the Court
over bigamy, where the marriage was celebrated, in Queensland
or elsewhere. When they had done that they repealed the
Imperial Statute, 9 Geo. IV., c. 31, the whole of it, and so cut away
from under their feet the Imperial legislation upon which the
jurisdiction of the Court stood in respect of bigamy. The juris-
diction of the Court then rested solely upon the local Act giving
jurisdiction to the Court where the second marriage took place,
in Queensland or elsewhere. We must read the Acts of the
Legislature as speaking within its own jurisdiction, and Queens-
land or elsewhere can only be read, in my judgment, as Queensland
or its dependencies. This marriage took place in England, after
the passing of the statute to which I have referred ; it was an
offence, therefore, not against our law, and not triable here.
I am of opinion, therefore, the conviction must be quashed.
LuTWYCHE J. : Many serious evils — pointed out by the Chief
Justice in his judgment — would result from the Court holding
that time was of the essence of the contract of marriage. While,
on the other hand, no practical inconvenience will follow from
an opposite conclusion. It is in the highest degree improbable
that any minister, registrar, or justice of the peace will wilfully
contravene the directory provisions of the statute by anticipating
or exceeding the period of time within which the Legislature
has declared that a marriage shall be solemnised, and thereby
expose himself to the heavy penalties imposed by the 25th section
of the Marriage Act of 1864. Oversights may indeed occur, but
they must be very rare. The present case is the first of the kind
that has been brought under the notice of the Court, although
CRIMINAL REPORTS, 1860-1907.
147
the Act in question has been in force nearly fifteen years. I
should be loath, however, in deciding this case, to found my
opinion in any degree upon the terms of the marginal note attached
to the 12th section of the Act. Whatever may be the case in
England, the marginal notes of colonial statutes, especially in
the earlier days of legislation, are notoriously unreHable. I will
only say, in answer to the fii-st question submitted to the Court,
that in my opinion the marriage of the 27th October, 1874,
was not an illegal marriage within the proviso of the 11th section
of the Marriage Act of 1864, but, on the contrary, was legal and
valid ; but, secondly, I think the case ought not to have been
left to the jury, and that the conviction cannot be sustained,
on the ground of want of jurisdiction. By the Criminal Statutes
Repeal Act, 29 Vict., No. 14, the Imperial Act, 9 Geo. IV., c. 31,
which regulated the law relating to bigamy, was repealed, and the
provisions of a Queensland statute, 29 Vict., No. 11, s. 58, were
substituted for it. As it is the second marriage which constitutes
the offence, the prisoner, who must be presumed for the purposes
of this part of the case to be a subject of Her Majesty, might
have been tried in England, but was not properly tried here.
The Imperial Act, 24 and 25 Vict., c. 100, s. 57, of which the 58th
section of our colonial Act is a transcript, would have been appU-
cable if the second marriage had been celebrated in Queensland,
and the trial had taken place in England, because the Imperial
Parliament has power to pass laws which are binding on aU Her
Majesty's subjects, wherever they may be ; but the laws of
Queensland are only binding within the Umits of the colony and
its dependencies.
Harding J. : I agree with what has been said by their Honors.
To my mind, the first question turns upon the construction of the
proviso to the 11th section of the Marriage Act of 1864 — " Pro-
vided that no marriage celebrated by any minister or registrar
shall be deemed to be legal or vahd unless celebrated between
the hours of eight o'clock in the morning and eight o'clock in the
evening " — whether that proviso is merely declaratory or im-
perative ; reading the proviso by itself it would seem to be im-
perative. But to ascertain whether it is or not, it has to be
considered whether or not it is cut down by the 12th section,
which enacts that " Every marriage which shall be celebrated by
any such minister or registrar as aforesaid after oath or solemn
affirmation so made shall be a legal and vahd marriage to all intents
and purposes and no other marriage except as hereinafter pro-
Eeqina v.
Bakton.
Lutwyohe J.
Harding J.
148
QUEENSLAND JUSTICE OF THE PEACE.
Eegina v.
Bakton.
Harding J.
vided shall be valid for any purpose." Now, what is referred to
by the words ' as aforesaid,' do they refer to the qualification,
of the minister or registrar alone or coupled with the celebration ?
I take it that they do not refer to the qualification of the minister
or registrar alone,— the word ' such ' before the words ' minister
or registrar ' would have been sufficient for that without the
words ' as aforesaid,' consequently it refers to every marriage
which shall be celebrated — that is, the fact of celebration — in.
short, any marriage accomplished or through which the form
has been gone. Returning to the proviso, it has no effect until
the marriage is celebrated, in fact, it recognises under what has
gone before that a marriage may be celebrated at any time
legally, and then it purports to avoid such marriage after cele-
bration if celebrated between the hours mentioned. The cele-
bration of the marriage, which must be complete before the
proviso takes effect, is legahsed by s. 12 — this is exactly the
opposite to the proviso — the proviso and s. 12 are therefore
actually repugnant, and the proviso as an imperative enactment
must give way to the 12th section and consequently be construed
as being directory only ; it certainly does not avoid the marriage.
I answer the first question in the negative.
Then with regard to the second question and the point which
has arisen upon the case itself. The second marriage appears
to have been celebrated in England, outside the Hmits of the
jurisdiction of this colony. Now by the Charter of Justice Act,
9 Geo. IV., c. 83, s. 24, the laws of England then in force were
given to the colony of New South Wales. During the session
of ParUament in which that Act was passed there had also been,
passed the Act, 9 Geo. IV., c. 31 — " The Injuries to Persons Act."
The 22nd section of that Act relates to bigamy, and in effect
enacts that any person marrying during the hfe of the former
husband or wife shall be guilty of felony, whether the second
marriage shall have taken place in England or elsewhere. That
being the law the case of Reg. v. Packer (3 N.8.W. Reports 40)
arose in New South Wales before Separation, and came before the
Supreme Court of that colony upon a special case stated by His
Honor Sir Alfred Stephen. The prjpcipal facts of the case need
not be mentioned except so far as the question raised by the
Chief Justice in the 8th par. : " After the verdict I announced
that I should reserve also the point following of my own authority.
The statute of Geo. IV., c. 31, which contains the enactment
in force in this colony on the subject of bigamy was appUed to
CRIMINAL EEPORTS, 1860—1907.
149
New South Wales and Tasmania by the Act of the British Parha-
ment, 9 Geo. IV., c. 83, s. 24, being the general extending section
applicable to both colonies. But it occurs to me as deserving
consideration, whether the effect of the statute, 9 Geo. IV., c. 31,
s. 22, so extended to New South Wales as aforesaid, makes the
offence of marrying in Tasmania, for instance, cognizable and
punishable in New South Wales. I submit this question for the
opinion of the Court, together mth the others which were raised
at the instance of the prisoner's counsel." So it appears that at
that tim.e, when this colony formed part of the colony of New
South Wales, the doubt, whether under the Imperial Statute the
Court had jurisdiction was exploded by the decision in this case,
at page 48. The Chief Justice, in his judgment, says : — " The
doubt which I suggested at the trial has been removed by further
considering the words of the statute creating this offence. That
statute was, by the 9 Geo. IV., c. 83, incorporated in our laws,
and is therefore the law of the colony. If the enactment has been
passed by a colonial legislature it would have no force as to
marriages contracted elsewhere than in the colony legislating.
But the British ParUament has legislative authority over aU the
colonies, and over all British subjects everywhere. I think,
therefore, that the courts of this colony have jurisdiction over the
offence, although committed out of the colony." That case was
subsequently followed by Reg. v. Rogers, 9 N.S.W. Reports, 34.
Since then the legislature of this colony, I assume, with a know-
ledge of the law and the effect of these decisions, has by subsequent
enactments done something which has had the effect of lessening
or diminishing the jurisdiction of this Court, as I hold there
can be no doubt as to the meaning of the legislature when it
passed The Criminal Statutes Repeal Act of 1865. Before it
had passed that Act it had passed The Offences against the Person
Act of 1865, the 58th section of which relates to bigamy. That
Act in that section merely took the corresponding section of the
EngUsh Act, 9 Geo. IV., c. 31, and altered the word " England "
to " Queensland," and otherwise adapted it to this colony. The
Criminal Statutes Repeal Act of 1865 recites, that by several Acts
of the then present session of Parliament of which The Offences
against the Person Act formed one, divers Acts and parts of Acts,
amongst which 9 Geo. IV., c. 31, was included, have been con-
soUdated and amended, and that it is expedient to repeal the
enactments so consolidated and amended, and proceeds to repeal
amongst others the Act 9 Geo. IV., c. 31. Consequently, this
Rbgina II.
Barton.
Harding J.
150 QUEENSLAND JUSTICE OP THE PEACE.
Ebgina v. 22nd section of 9 Geo. IV., c. 31, was swept away, and being swept
t ' away nothing remained but the enactment passed by the colonial
Harding J. legislature — namely. The Offences against the Person Act of 1865,
which has no force in respect of marriages contracted beyond
the colony. Should this conviction be sustained, another difficulty
strikes my mind. A prisoner who has once suffered his punish-
ment is entitled to plead that he has been convicted and sufiered
the puishment, and is not liable to be again convicted for the same
offence. Now in another British possession some distance away
from here, supposing this man was tried again, he would say
that he had been already tried and convicted, and had suffered
his punishment in this colony under the ConsoUdated Act. The
Court trying him would say it was beyond the power of the
Queensland legislature to enact an Act whereby a crime, which
is local, and which had been committed outside their jurisdiction,
is made amenable to the laws of Queensland, and he would be
convicted and punished ; and so he might be tried and punished
in every place of Her Majesty's dominions where there is a separate
jurisdiction. The strange result of this legislation seems to be
that this is the only part of Her Majesty's dominions where this
man is safe. The answer I give to the second question is, that
this Court has no jurisdiction.
Attorney for the prisoner : N orris.
[In Chambers.]
REGINA V. McMURDO AND DAVIES.
[2 Q.L.J. 10.— Note.— See also R. v. Pierson, Ex parte Small, 1906 S.R.Q. 5, and
McKelvey v. Meagher, 4 C.L.R. 265.]
1884. Fugitive Offenders Act of 1881 — Foreign Jurisdiction Acts.
Her Majesty has, within the jurisdiction of the High Commissioner for the
Lilley C.J. Pacific, dominion within the meaning of the Fugitive Offenders Act of 1881.
Held, that in this case the prisoners were fugitives from that part of Her Majesty's
dominions, and that there was jurisdiction to arrest them within this colony and
to return them to the High Commissioner. Held, also, that the warrant under
which the prisoners were arrested and its endorsement were in all respects
sufficient.
This was a return to a writ of habeas corpus. The facts of the
case appear sufficiently from the judgment.
The writ was obtained on the following grounds : — (1.) That
CRIMINAL REPORTS, 1860—1907.
151
the warrant under which the prisoners were arrested did not
disclose any offence within the meaning of the Fugitive Offenders
Act of 1881. (2). That it did not appear upon the face of the
warrant that the prisoners were fugitives, within the meaning of
the Act. (3.) That the endorsement of the Governor did not
disclose, and there was no evidence to show, that the Governor
was satisfied that the warrant was issued by some person having
authority to issue the same. (4.) That the warrant was not
properly authenticated ; and (5) that the warrant was not issued
by a person having authority to issue it.
Rutledge A.O. and Chvbh Q.C. appeared for the Crown and
for the High Commissioner of the Pacific. Power appeared for
the prisoners.
The Attorney -General contended that the warrant itself disclosed
an offence within the meaning of the Fugitive Offenders Act of
1881, namely that of arson. Section 9 provided that it should
" apply to the following offences, namely, to treason and piracy,
and to every offence, whether called felony, misdemeanour,
crime, or by any other name, which is for the time being punish-
able in the part of Her Majesty's dominions in which it is com-
mitted, either on indictment or information, by imprisonment
with hard labour for a term of twelve months or more, or by any
greater punishment." That in the place where the offence
was committed there was no local statute which declared that
arson was a felony, but that the Order-in-Council of 1877 provides
for the estabUshment of the High Commissioner's Court, and that
s. 23 of that Order, when taken in conjunction with s. 27, gives
the High Commissioner's Court power to deal with offences
committed within the High Commissioner's jurisdiction, and to
give the punishment awarded by the English law for the time
being. That the law of England makes arson a felony, and
punishable by more than twelve months imprisonment, and
therefore it is an offence within the provisions of the Act of
1881. That there being jurisdiction on the part of the High
Commissioner's Court to punish offences under s. 9 of the Fugitive
Offenders Act of 1881, he submitted that the warrant which
had been issued for the arrest of the prisoners, was good
and unimpeachable, that the warrant was precisely such
a warrant as would be issued in England for the
crime of arson, and that on the first ground the contention
on the part of prisoners was untenable. On the second
ground, he contended that it was not necessary to show in the
Beqina v.
MoMttRDO AND
Davies.
152 QUEENSLAND JUSTICE OF THE PEACE.
Begina r. warrant that they were fugitives. The fact that the warrant is
Davies. to ^^ backed by a magistrate, by the Governor in this case,
shows that the person whose arrest was sought was a fugitive
from the place where the offence was committed. It might
be contended on behalf of the prisoners that they were not " found "
within the meaning of the second section of the Act, one of them
having been brought from Adelaide. He submitted that a man
was " found " where he was actually present at the time, and that
although in the present case one of the prisoners is not in Queens-
land voluntarily he is nevertheless under s. 2 " found " in this
colony. Reg. v. Lopez, 27 L.J., M.C., 48. Whether the prisoners
were fugitives within the meaning of the statute would depend
upon the question whether the High Commissioner had authority
to issue a warrant for the apprehension of fugitives from the
Westem|Pacific. [|v;^|^
[i^I'Ae Chief Justice : It is enough for me that Her Majesty
has established civil and criminal jurisdiction, and appointed
officers to exercise that jurisdiction over all the islands in the
Western Pacific, not being within the jurisdiction of any civilised
power. I have no doubt the High Commissioner has power
to issue the warrant. Then the question arises whether s. 2
appUes to the return of prisoners from the colony of Queensland
to the jurisdiction of the High Commissioner. I have no doubt
about that, if the procedure is right and the warrant and all its
requisites are properly set out. I cannot go behind the warrant.
The Attorney-General said he would not trouble His Honor
further upon the question of jurisdiction. Then as to the third
point, he submitted that there was nothing in the Act to suggest
how the Governor was to endorse upon the back of the warrant
that he was satisfied. The mere fact of his signing his name
was proof that he was satisfied, and that it must be taken that
the Governor, in endorsing the warrant, had acted rightly. That
the satisfaction was a thing in the Governor's mind, and he
communicated the effect of that satisfaction by endorsing the
warrant in the prescribed manner. As to the fourth point, he
contended that the seal of the Court of the High Commissioner
showed that the warrant was properly authenticated. The fifth
point, he submitted, was covered by the ground already gone
over.
Chubb Q.C. contended as follows : 1. The warrant sufficiently
discloses a criminal offence within s. 9 of the Fugitive Offenders Act
of 1881. Technicality in charging the offence was not required
CEIMINA.L REPORTS, 1860—1907. 153
by the Act. No objection could be taken to proceedings for Eeoina v.
want ot torm ; Order-m-CounciI, 1877. A warrant m general Daties.
terms is sufficient. Ex parte Terraz, 4 Ex. D., 63. The offence
is arson, and is properly stated. 2. The prisoners are fugitives.
Foreign Jurisdiction Act, 1878, ss. 3, 5. Order-in-Council 1879,
No. 15. Fugitive Offenders Act, 1881, ss. 2, 36. 3. The warrant
is properly authenticated. It has the seal of the High Com-
missioner's Court, which is a superior court — Order-in-Council,
1879, No. 15. It is therefore a judicial proceeding of which this
Court wiU take judicial notice, and is proved by the seal. Evidence
and Discovery Act, s. 39. There is a conclusive presumption in
favour of the regularity of judicial proceedings 1 Taylor on Evidence,
101. The warrant requires no signature — Order-in-Council, 1877,
No. 16, 135, and Form 5, warrant and Order-in-Council, 1879,
No. 6 — but must be sealed. 4. It will therefore be presumed
to have been issued by a person duly authorised. 5. The endorse-
ment by the Governor is evidence of satisfaction. It will be
presumed that he has acted rightly — omnia proesumuntur, &c.
Endorsement is in his discretion, which this Court will not, if it
could, review. It is a question of the quantum of evidence suffici-
ent to satisfy, of which the Governor is the judge. Beg. v.
Maurer, 10 Q.B.D., 513.
Power submitted that the Crown must satisfy his Honor
beyond any reasonable doubt that the persons seeking to detain
these prisoners had authority by law to do so, that it was quite
clear from the statutes and Orders-in-Council that a great differ-
ence existed between Her Majesty's jurisdiction in Her own
dominions and in islands not under civilised power. He cited the
preamble to the Fugitive Offenders Act, and s. 2, and contended
that the words " an offence committed in one part of Her
Majesty's dominions," and to the offenders " leaving that part
and being found in another," meant part of Her Majesty's domin-
ions as distinct from the Western Pacific Islands, over which she
exercises power and jurisdiction. By s. 6, the fugitive is to
be returned to that part of Her Majesty's dominions from which
he is a fugitive, but he took it that it was not intended in this
case to return these men to the Laughlan Islands, which are
not within Her Majesty's dominion, but to take them to the
capital of Fiji. - Section 8 provides that after he is taken back he
must remain in the place for six months. Section 9 declares that
the offence must have been originally committed within Her
Majesty's dominion. That no Order-in-Council had been made
154 QUEENSLAND JUSTICE OP THE PEACE.
Eegina v. under s. 36, and that there must be a special Order-in-Council
Davies, made after the Act was passed. That the warrant ought to have
set out that the offence was one punishable with twelve months
imprisonment or more. That the authentication of the warrant
must be proved. That the endorsement must shew that the
Governor is satisfied that the warrant was issued by some person
having authority in manner provided by s. 26 of the Act. He
referred to Nash's case, 4 5. cfc Aid. 295, and Deybel's case, ibid.,
243, to show that it was necessary to state what proof was given.
Chubb Q.C., in reply : " Dominions," in the 2nd section of the
Fugitive Offenders Act of 1881, not only means the territorial
dominions of Her Majesty but the parts and places not within
the dominions where she exercises power and jurisdiction. The
Fugitive Offenders Act of 1843, ss. 1, 2. It is settled usage that,
as a general rule, persons belonging to a state cornmunity, when
in places not within the territorial jurisdiction of any power,
are in the same legal -position as if on the soil of their own state.
Hall on International Law, 207. The Foreign Jurisdiction Act
of 1878, s. 3, empowers the Queen-in-Council, by order, to extend
the Act of 1843 and other Acts mentioned in the schedule, or any
Acts in force for the time being, amending or substituted for
the same to any country or place to which for the time being
the Act of 1843 applies, whereupon such country or place assumes
the character of a colony, with Her Majesty-in-Council as its
legislature ; and the 5th section of the same Act extends the Act
of 1843 over Her Majesty's subjects resident in or resorting to
countries or places not under regular Governments. The Court
and jurisdiction of the High Commissioner was established by
Order-in-Council in 1877. A further Order-in-Council in 1879
extended the Act of 1843, or so much of it as was in force, or any
Act amending the same or in substitution for it, to the Western
Pacific Islands. Then came the Act of 1881, in substitution
for the Act of 1843, which it repealed. The Acts of 1843 and
1878, with the Order-in-Council of 1877, were sufficient in them-
selves to constitute the Laughlan Islands " dominions " within
the meaning of the Act of 1881, but if not, the Order-in-Council
of 1879 apphed the Act of 1878 as an amending statute, and
prospectively the Act of 1881 as an Act in substitution for that of
1843, and Her Majesty has thereby power aitd jurisdiction,
which is " dominion," in those islands.
His Honor reserved his decision and on June 4th delivered the
following judgment : —
CRIMINAL REPORTS, 1860-1907.
155
Lilley C.J.
LiLLEY C.J. : The prisoners have been brought up on a writ ,,^5*'"* "■
. '^ 1 MOMUBDO ANI>
oi habeas corpus, and upon that an application has been founded Davies.
for their discharge. They were arrested by virtue of the followinsj
warrant : — ■
To John Fowley, police officer, and other officers of this Court.
William M'Murdo and Joseph Griffith Davies, British subjects, have this day-
been charged before this Court for that they did, on or about the 8th April, in the
year of our Lord 1883, at Laughlan Islands, such islands being islands in the
Western Pacific Ocean, not being within the limits of any British colony, and
not being within the jurisdiction of any civilised power, feloniously, unlawfully,
and maliciously set fire to certain dwelling houses the property of one Tamiu and
others, with intent thereby then to injure the said Tamiu and others, against
the form of the statute in such case made and provided, and against the peace of
Our Lady the Queen, Her Crown and dignity.
Therefore you are hereby commanded in the name of Her Majesty Queen
Victoria, forthwith to apprehend the said William M'Murdo, and to bring him
before this Court to answer to the said charge, and to be further dealt with accord-
ing to law.
Then, that warrant bears the seal of the Court of the High Com-
missioner for the Western Pacific. This warrant was issued by
the Court of the High Commissioner of the Western Pacific,
and is to be enforced, if at aU, by virtue of the Fugitive Offenders
Act of 1881. By s. 2 of that Act it is enacted —
Where a person accused of having committed an offence (to which this part
of this Act applies) in one part of Her Majesty's dominions has left that part, such
person (in this Act referred to as a fugitive from that part) if found in another
part of Her Majesty's dominions, shall be liable to be apprehended and returned
in manner provided by this Act to the part from which he is a fugitive.
A fugitive may be so apprehended under an endorsed warrant or a provisional
warrant.
The warrant bears the Governor's endorsement, under s. 3, which
endorsement is as follows : —
To all constables of police for the colony of Queensland.
These are to authorise you to execute the within warrant within the said colony,
by apprehending the within-named William M'Murdo, and bringing him before
William Henry Day, Esq., acting police-magistrate at Brisbane, or some other
police-magistrate of the said colony, to be dealt with according to law.
Given under my hand, at Government House, this 15th day of May, 1884.
A. MusOKAVE Governor.
S. W. Griffith.
The warrant in the case of Davies is in exactly similar words.
Both are in Uke form, arid bear the Hke endorsement. By s. 3
it is enacted that the Governor of a British possession, " if satis-
156
QUEENSLAND JUSTICE OP THE PEACE.
Eegina u.
MoMuBBO iND
Davies.
Lilley C.J.
fied that the warrant was issued by some person having lawful
authority to issue the same, may endorse such warrant in manner
provided by this Act, and the warrant so endorsed shall be a
sufficient authority to apprehend the fugitive in the part of Her
Majesty's dominions in which it is endorsed, and bring him before
a magistrate." On the prisoners' behalf it has been contended
that it does not appear that they are fugitives within the meaning
of that statute, on the ground that they have not left any part
of Her Majesty's dominions, and that the offence was not com-
mitted within any part of Her Majesty's dominions within the
meaning of the statute. Upon this the question of jurisdiction
has been raised ; whether the power and jurisdiction of Her
Majesty within the Western Pacific Islands exercised by the
High Commissioner is included within the word " dominion "
in the Fugitive Offenders Act, and whether the prisoners can be
treated as fugitives from any part of Her Majesty's dominions ?
The solution of this question depends upon the nature of Her
Majesty's power or jurisdiction within the Western Pacific
Islands. I shall consider the question entirely in connection
with the Foreign Jurisdiction Acts, the Western Pacific Orders-ia-
Council, and the Fugitive Offenders Act of 1881. The Foreign
Jurisdiction Act of 1843 is described as " an Act to remove doubts
as to the exercise of power and jurisdiction by Her Majesty
within divers countries and places out of Her Majesty's dominions,
and to render the same more effectual." After reciting —
That byftreaty,f capitulation, grant, usage, sufferance, and other lawful means,
Her Majesty hathfpower and jurisdiction within divers countries and rlacesTout
of Her Majesty's dominions : And that doubts have arisen how far the exercise
of such power and jurisdiction is controlled by and dependent on the laws and
customs of this realm, and it is expedient that such doubts should be removed —
by s. 1 it is enacted —
That it is and shall be lawful for Her Majesty to hold, exercise, and enjoy any
power and jurisdiction which Her Majesty now hath, or may at any time hereafter
have, withinfanyfcountry or place out of Her Majesty's dominions, in the same
and as ample a manner as if Her Majesty had acquired such power or jurisdiction
by the cession or conquest of territory.
By s. 2 it is enacted —
That every act, matter, and thing which may at any time be done, in pursuance
of any such power or jurisdiction of Her Majesty, in any country or ijlace out of
Her Majesty's dominions, shall, in all courts ecclesiastical and temporal and
•elsewhere within Her Majesty's dominions, be and be deemed and adjudged to be,
in all cases and to all intents and purposes whatsoever, as valid and effectual as
CEIMINAL REPORTS, 1860—1907.
15T
though the same had been done according to the local laws then in^oroe within
such country or place.
On the 13th August, 1877, by Order-in-Council, Her Majesty
estabUshed civil and criminal jurisdiction within the islands
of the Western Pacific, in pursuance of the Pacific Islanders
Protection Acts of 1872 and 1875 and the Foreign Jurisdiction
Acts from 1843 to 1875, and by virtue of any other powers in
Her Majesty vested. By Article 5 of that Order-in-Council,
the jurisdiction extends and applies to certain named islands,
and to " all other islands in the Western Pacific Ocean not being
within the Umits of the colonies of Fiji, Queensland, or New South
Wales, and not being within the jurisdiction of any civilized power,
and to the waters within three miles of every island or place
aforesaid." By Article 6, subdivision 1, the order also applies
to " all British subjects, for the time being, within the Western
Pacific Islands, whether resident there or not." By Article 22
it is provided that —
Subject to the other provisions of this order. Her Majesty's criminal and civil
jurisdiction exercisable in the Western Pacific Islands shall, as far as circumstances
admit, be exercised on the principles of and in conformity with the statute and
other law for the time being in force in and for England, and with the powers
vested in and according to the course of procedure and practice observed by and
before the courts of justice and justices of the peace in England, according to their
respective jurisdiction and authorities.
Then by s. 3 of the Foreign Jurisdiction Act of 1878 it is enacted
that —
(1.) It shall be lawful for Her Majesty the Queen-in-Council, if it seems fit,
from time to time, by order, to direct that all or any of the enactments described
in the first schedule to this Act, or any enactments for the time being in force
amending or substituted for the same, shall extend with or without any exceptions,
adaptations, or modifications in the order mentioned to any country or place to
which for the time being the Foreign Jurisdiction Ad, 1843 applies.
(2.) Thereupon those enactments shall operate as if that country or place were
one of Her Majesty's colonies, and as if Her Majesty-in-Council were the Legis-
lature of that colony.
It has been contended that this section enables Her Majesty
to make an Order-in-Council of a prospective character (as it is
called) giving effect not only to statutes in existence at the time
of promulgating the Order-in-Council, but to statutes that may
be thereafter passed. I am unable to construe the statute in that
way, and if the Fugitive Offenders Act of 1881 depends upon the
'prospective force of the Order-in-Council of 1879 (which was
Eeoina v.
MoMdrdo and-
Davibs.
Lilley C.J.
158 QUEENSLAND JUSTICE OF THE PEACE,
Eegina 0. passed by virtue of this 3rd section), upon subsequent legislation
McMCBDO AND '^ "^ ., j-i-i, r
Davies. I am of opinion that it has no force within the colony of Queens-
-. ... ' J land in respect of proceedings commenced within the Western
Pacific jurisdiction ; in other words, that the statute does not
authorise the appUcation of prospective legislation by Order-in-
Council. However, I think that in this case the jurisdiction
under the Fugitive Offenders Act of 1881 does not need the support
of the Order-in-Council of 1879. If it did, I should hold that that
support would fail, inasmuch as the language of the statute of
1878, and even the words of Article 15 of the Order-in-Council
of 1879, do not appear to me to bear a construction giving effect
to a statute to be thereafter passed unless a special Order-in-
Council should be issued after the passing of the substituted
statute. No Order-in-Council has been issued under s. 36 of the
Fugitive Offenders Act of 1881 applying it to this jurisdiction
of the High Commissioner. With regard to the Fugitive Offenders
Act of 1881, 1 rest my decision on such parts of it as do not require
the support of any Order-in-Council. It seems to me, neverthe-
less, that irrespective of this omission to issue an Order-in-Council
under s. 36, and irrespective of the Order-in-Council of 1879, the
Fugitive Offenders Act of 1881, or at least all such parts of it as do
not need for their operation the support of the alleged prospective
authority of the Order-in-Council of 1879, but rest simply upon
the force of the statute of 1881 itself, are in operation within
the Western Pacific Islands and within this colony. By s. 5
of the Foreign Jurisdiction Act of 1878 it is enacted that —
In any country or place out of Her Majesty's dominions, in or to which any of
Her Majesty's subjects are for the time being resident or resorting, and which is
not subject to any Government from whom Her Majesty might obtain power and
jurisidiction by treaty or any of the other means mentioned in The Foreign Juris-
diction Act, 1843, Her Majesty shall, by virtue of this Act, have power and juris-
diction over Her Majesty's subjects for the time being resident in or resorting to
that country or place, and the same shall be deemed power and jurisdiction had
by Her Majesty therein within The Foreign Jurisdiction Act, 1843.
Now, in my opinion, by the force of ss. 1 and 2 of the Foreign
Jurisdiction Act of 1843, and of the Order-in-Council of 1877,
and of ss. 3 and 5 of the Foreign Jurisdiction Act of 1878, Her
Majesty has within the jurisdiction of the High Commissioner for
the Pacific dominion within the meaning of the Fugitive Offenders
Act of 1881, and that the prisoners are fugitives from that part
of Her Majesty's dominions, and that there is jurisdiction to
arrest them within the colony of Queensland, and to return them
CRIMINAL REPORTS, 1860-1907.
159
to the jurisdiction of the High Commissioner upon the endorsed
warrant, if the instrument itself and its endorsement are in other
respects sufficient. By force of the Foreign Jurisdiction Acts, and
of the Orders-in-Counoil, there is as much of the "territorial"
element in this " dominion," " power," or " jurisdiction " as
is essential to uphold and exercise it. Upon the question of the
sufficiency of the warrant, it was first contended that it does not
disclose an offence within the meaning of the Fugitive Offenders
Act of 1881, s. 9, inasmuch as it does not appear on the
face of that warrant that the offence is punishable by im-
prisonment with hard labour for a term of twelve months
or more, or by any greater punishment. The warrant aptly
describes in appropriate and technical words the offence of
arson as it would be described in a similar instrument for
the arrest of an accused person in England or this colony.
Now by Article 27 of the Order-in-Council of 1877, the Court of
the High Commissioner by the Judicial Commissioner has power
to adjudge any such punishment as any court of criminal juris-
diction in England has. for the time being power to adjudge, and the
Court by the High Commissioner or a Deputy-Commissioner
has a Umited power of punishment for any term not exceeding
twelve months, with or without hard labour. The Fugitive
Offen^rs Act, s. 9, uses the words " That the Act shall apply
to offences punishable in the part of Her Majesty's dominions
in which it was committed by imprisonment with hard labour
for a term of twelve months or more or any greater punishment."
The warrant and the Order-in-Council, of which I am bound
to take judicial notice, therefore show that the offence is one
clearly within the terms of s. 9 of the Fugitive Offenders Act,
and on this point the warrant must be held to be sufficient.
In the English case of A.B., cited from the despatch of the 29th
June, 1883, the colonial law required to be proved, and the
distinction is that, in this case, it is judicially noticed. The
second point, on the sufficiency of the warrant, is that it is not
properly authenticated. Section 29 of the Fugitive Offenders Act
of 1881 declares that warrants shall be deemed duly authenticated
for the purposes of the Act if they are "authenticated in the
manner provided for the time being by law." By Article 32
of the Order-in-Council of 1879, judicial notice is, as I have said,
to be taken of that Order and of the principal Order of 1877,
and of all seals used thereunder, and, on reference to the schedule
to the Order of 1877, I find that a warrant in the first instance
Beoina v.
MoMUEDO AND
Davies.
Lilley C.J.
160
QUEENSLAND JUSTICE OF THE PEACE.
EEoraA V.
McMuBDO AND
Davies.
Lilley C J.
for the apprehension of an accused is to be issued by the Court
and to bear the seal. I must take judicial notice of the seal
(Article 32, Order of 1879) and presume that it was appended,
and the warrant issued by a person having lawful authority
to issue the same, and this determines the third and fourth point,
which latter was that the warrant was not issued by a person having
authority to issue the same. The fifth point raised was that the
endorsement does not show that the Governor was satisfied that
the warrant was issued by some person having lawful authority
to issue the same. This point is in some degree analogous to the
contention that where a statute authorises a justice of the peace
to endorse a warrant upon ;^roof on oath of the handwriting
of the justice granting the warrant, the endorsement itseK
should aver that such proof had been given. The contention here
being that the Governor should have averred that he was satisfied
as required by the Act. It has not been decided in England that
such averment is necessary, although no doubt if made it would
give a more assured warrant. This point was raised in England
in the case of Atkins v. Kilby, 11 A. and E. Ill, before Baron
Parke. Without deciding it the learned Baron said " he thought
that he must presume the magistrate to have acted rightly, and
on the requisite proof." I think I must do so here, and presume
that the Governor discharged his duty as required by the statute,
and that he was satisfied that the warrant had been duly issued
before he placed his endorsement upon it. The case for the
prisoners fails on aU points, and I remand them to custody under
the endorsed warrant.
The prisoners were remanded to custody accordingly.
Solicitors for prisoners : Hart, Mein, & Flower.
Solicitor for Crown : Grown Solicitor.
1884.
October.
[Full Cottet.]
CURRAN V. DOWZER AND OTHERS.
[2 Q.L.J. 45.— Note.— 35 Vic, No. 4, s. 28 is repealed. See now s. 448 of Criminal
Code.]
Brands Act (35 Vict. No. 4, s. 28).
The word '" wilfully " in the 28th section of The Brands Act means knowingly
and intentionally.
This was a motion to make absolute a rule nisi for a prohibition
granted by His Honour Mr. Justice Harding, at the instance
CRIMINAL REPORTS, 1860-1907.
161
of John Curran against James Dowzer, Jonathan Job, and
Frederick Edward Bull, JJ.P., and George William Roebuck,
Inspector of Brands for the Wide Bay District. Six head of
female cattle, the property of Curran, were found by the Inspector
of Brands bearing a brand which had been altered, a portion
of one brand having been imprinted over the corresponding
portion of a previously imprinted brand. The original brand
was the registered brand of Curran, and the brand as altered
represented a brand registered by Curran in the name of his son.
There was evidence that the brand had been altered by Curran,
but no improper motive was alleged. The bench, consisting of
Dowzer, Job, and BuU, convicted Curran of having wilfully
permitted his registered brand upon six head of female cattle
to be altered by the impressing of the registered brand of his son
upon the top of his brand, and fined him 5s. per head of stock so
branded, and £1 5s. 8d. costs. •
Drake moved the rule absolute, and the Attorney-General and
Real appeared to show cause on behalf of Roebuck.
The Attorney-General submitted that in order to sustain a
conviction under the 28th section of the Brands Act it was only
necessary to show that the brands had been altered by Curran ;
it was not necessary to show that the brands had been blotched
or defaced. There was evidence that Curran had imprinted
the second brand and the fact that only a portion of the second
brand had been used was evidence of an intention to alter the
original brand. The fact that no particular reason for the
alteration had been alleged was no answer to the charge.
Vickers v. Sellheim and Others {Q.L.J. Vol. I., p. 131) and
Gully V. Smith (12 Q.B.D. p. 121) were cited and commented on.
Real contended that the imprinting of the second brand upon
the first being a breach of the statute, it was not necessary to show
any motive for making the alteration. It would not be difficult,
if necessary, to suppose a reason for the alteration. For instance,
under the operation of the Insolvency Act a question of ownership
might be raised and in that case the state of the brand would
become of importance.
Drake submitted that the word " wilfuUy " imported some-
thing more than mere consciousness of performing an act ; some
wrong motive must be shown. One brand could not be placed
over another without making an alteration, and therefore, if the
act of knowingly placing one brand over another were an offence
L
CUBK\N V.
DOWZEK AND
OXHEBS.
162
QUEENSLAND JUSTICE OF THE PEACE.
CUBBAN V.
DOWZER AND
OlBEBB.
LiUey C.J.
under the 28th section, the word " wilfully " might be struck out
of the statute. No improper motive had been alleged, and there
was sufficient evidence to rebut any presumption of fraud. By
the 29th section of the Act, cattle bearing brands so altered
are liable to be impounded as unbranded stock ; it was therefore
against the interest of Curran to alter the brands on his own stock.
The act of placing one brand over another is an offence under
the 18th section of the Act as being a non-compliance with the
rules contained therein, and Curran should have been convicted,
if at all, of an offence under that section.
LiLLEY C.J. : We think that the rule must be discharged,
and I think with costs. The meaning of the 28th section is, to
my mind, perfectly clear. If a person wilfully alters a brand or
wilfully permits a brand to be altered, he incurs the penalty
provided by the statute for such misconduct. The word ''wil-
fiilly" in this section seems to me to mean knowingly and inten-
tionally. If a man knowingly alters a brand, intending that there
should be an alteration of it, then he has done that act wilfuUy and
cannot plead as an excuse for such conduct that he did not know
his act was prohibited by statute. The magistrates before whom
the case was brought had reasonable evidence from which they
could find that there was a wilful permission of alteration of a
brand within the meaning of the statute. It is such a question
as would be submitted to a jury ; and there being evidence from
which reasonable men would come to the conclusion that there
had been a wilful alteration of the brand, they were justified
in coming to that conclusion. The judgment must be upheld.
The rule, therefore, will be discharged with costs.
Solicitors for applicant : Wilson ds Wilson.
Solicitor for Roebuck : Crown Solicitor.
1884.
October.
[Full Court.]
REGINA V. HOPKINS AND EATON.
[2 Q.L.J. 47.— Note.— 40 Vic, No. 10, ss. 1 and 2 are repealed. See now s. 2 of
Oaths Act Amendment Act of 1884 (48 Vic, No. 19).]
Oaths Act Amendment Act of 1876 (40 Vic, No. 10), Declaration.
Under the Oaths Act Amendment Act of 1876 it is for the Judge to be satisfied
at the trial that the witness understands the nature of the declaration substantially.
This was a special case stated by Mr. Deputy-Judge Mansfield.
The facts, as stated, so far as they are material, were as follows : —
CRIMINAL REPORTS, 1860—1907.
163
The prisoners were tried at the Northern District Court,
Charters Towers, on July iOth, 1884, on a charge of horse-steahng.
Charhe, an aboriginal, was tendered as a witness for the Crown.
No interpreter was present, or available. Charlie knew enough
EngUsh to understand and speak easy words. The presiding
Judge was satisfied that an oath would have no binding efiect
on Char he's conscience. It was impossible to make Charlie
understand the actual words of. the declaration set out in s. 1
of the Oaths Act Amendment Act of 1876. In answer to the Judge,
CharHe said he had come to tell the truth, and no he, and that he
knew that if he did not tell the truth he would be sent to prison.
The Judge was quite satisfied that CharUe understood that he
bound himself to ,tell the truth, and that he was aware of the
penalties he would incur if he did not do so. The Judge being
then about to admit Charlie's evidence, GampbeU, prisoners' coun-
sel, objected to its admission on the ground that CharUe had
not taken a promise and declaration in the form stated in s. 1
of the Oaths Act Amendment Act of 1876, or to the Uke effect,
mutatis mutandis, as required by s. 1 of the said Act. The Judge
admitted Charlie's evidence. Both prisoners were convicted.
The questions for the opinion of the Court were : 1. Was
the Judge right in admitting CharUe's evidence ? 2. Were the
prisoners properly convicted ?
Power (Campbell with him) appeared for the prisoners. Feez
appeared for the Crown, in support of the conviction.
Power contended that the witness CharHe could only speak
easy words, and that no attempt was made to repeat the declara-
tion to him, or to get it into his head. That it would be a fair
interpretation of the case if CharUe could be prosecuted for perjury ;
and that the Judge appeared to have acted upon the principle
that he would take the evidence for what it was worth. Regina
V. Tommy and George, Queensland Law Reports, vol. 1, part 2,
■p. 14, was cited.
Campbell foUowed.
Feez was not called upon.
LiLLEY C.J. : In this case it appears that the presiding Judge
was satisfied of the first matter he had to determine— namely,
that an oath would have no binding effect on the conscience of
the witness, and further that it was impossible to make CharUe
understand the actual effect of the words of the declaration in s. 1
of the Oaths Act Amendment Act of 1876. But, in answer to
Regina v.
Hopkins and
Eaton.
Lillej C.J.
164
QUEENSLAND JUSTICE OF THE PEACE.
Eegina v.
Hopkins and
Eaton.
Lilley C.J.
Harding J.
the Judge, Charlie said he had come to tell the truth, and no he.
That appears to me, to be in substance the ordinary witness' oath,
that he had come to speak the truth, the whole truth, and nothing
but the truth. But this declaration has added to the difficulties of
witnesses who do not understand the effect of an oath, by requiring
that they should know that they render themselves hable to the
penalties of wilful and corrupt perjury. In this case, I think,
substantially that, in popular language, the witness said that he
did, because he said that if he did not tell the truth he would be
sent to prison. But the Judge has certified something more in this
case. It is for the Judge, under this statute, to be satisfied at
the trial that the witness understands the nature of the declaration
substantially, the fair interpretation of the language ; and the
nature of the duty the Judge has to discharge has been determined
in the case of Begina r. Tommy and George, decided in this Court,
that the Judge has to determine as to the competency of the
witness. If there is an omission of duty on the part of the Judge,
the matter may be brought before this Court on a case reserved
and stated by the Judge himself ; but where the Judge dis-
charges his duty, he alone is to decide as to the competency
of the witness within the meaning of the Act. The Judge has
certified to us, and there is no reason to doubt that he was quite
satisfied of the state of CharHe's mind at the time, and that
Charlie understood and was aware of the penalties he would incur
if he did not tell the truth. Under these circumstances, I think
the Judge discharged his duty, the witness appeared to be com-
petent, the requirements of the statute were satisfied, and the
conviction must be affirmed.
Harding J. : The solemn declaration required to be adminis-
tered by the Oaths Act Amendment Act of 1876 is one of considerable
difficulty, and certainly, although the Act requires the witness to
solemnly promise, its administration is one of the most unsolemn
proceedings that the dignity of the court has to submit to.
Generally, having an ignorant black witness talking a species of
pigeon English, every word he says producing a disturbance in
the court. To my mind the proceeding is very unsatisfactory,
but being the law of the land, that law has to be administered.
In the administration of that law, as in other matters of detail, or,
so to speak, of administration, great latitude rests in the hands of
each Judge. Some Judge's minds are more technical than others ;
other Judges take larger and more general views, but by the
joining of such different minds together probably the true aim of
CRIMINAL REPORTS, 1860-1907.
165
the Act is obtained in the end. Bearing this in mind, and the
latitude allowed to each Judge, the question to be decided is.
Has the law been satisfied in that particular case ? In this case,
as I take it, there are, as Mr. Campbell mentioned, three detailed
steps required. First, that the presiding Judge is to be satisfied
that the taking of an oath will have no binding effect on the
conscience of the proposed instrument of evidence. In this case
it is definitely stated that the presiding Judge was satisfied that
an oath would have no binding effect on Charlie's conscience.
So that is the first step satisfied. The next step is that the pro-
posed instrument of evidence^ or witness, is to make a promise or
declaration in the form given in the Act, or to a like effect, mutatis
mutandis. I will read the words of the late Mr. Justice Lutwyche
in the case of Regina v. Tommy and George, Q.L.R., vol 1, part 2,
p. 18. " I think they were. The words, ' to the like effect,
mutatis mutandis,' in the first clause, clearly show that it is not
necessary that there should be a literal declaration by the witness
in the form given by the Act." Not necessary to be a Uteral
declaration. With that I agree. Here one of the difficulties
would greet a Judge of technical mind. Such a Judge would go
through the actual form simply as a form ; but going through
that would be of no use at aU, if the requirements of the statute
were not satisfied. Now, if it is to be a Uteral declaration, find
out first of all what a hteral declaration is. A solemn promise to
speak the truth ; that is what it amounts to. Secondly, that the
proposed witness makes the solemn promise or declaration with
the fuU knowledge that, if he does not speak the truth, I will
render myself Hable to the penalties of wilful and corrupt perjury.
That is a technical declaration. What is the Uteral ? I am not
going to tell what is false ; I am going to tell what is true, and I
am perfectly aware if I tell what is false and do not tell what is
true I shall be punished. That is the Uteral. In this case the
Judge says it was impossible to make CharUe understand the
words in the declaration ; that is to say, it was impossible to
make him understand them -as technicaUy placed. The Judge
goes on — " in answer to the Judge, CharUe said he had come to
ten the truth, and no Ue, and knew that if he did not teU the truth
he would be sent to prison." That is the Uteral. That actually
occurred. There you have the two steps — first, the satisfaction
of the Judge that an oath would have no binding effect on the
witness ; second, an actual compUance with the requirements of
the law— a literal compUance. Then the third requisition of
the law is that it shaU be the duty of the presiding Judge, before
Begina v.
Hopkins and
Eaton.
Harding J.
166
QUEENSLAND JUSTICE OF THE PEACE.
Begina v.
Hopkins and
Eaton.
Harding J.
taking the evidence of any such person, to satisfy himseK that he
clearly understands the meaning of such promise and declaration.
Did the Judge do that in this case ? In his statement of the case
he says that he was quite satisfied that CharUe bound himself to
tell the truth, and was aware of the penalties he would incur if
he did not do so. There are the three requirements ; each of
them to my mind was satisfied in this case, and, that being so, I
think the law has been complied with, and that the conviction
must be affirmed.
Solicitor for Crown : Crown Solicitor.
SoUcitors for prisoners : Macpherson ds Mishin.
1885.
March.
[Full Court.]
WILLIAMS V. BAIRD AND OTHERS.
[ 2 Q.L.J. 60.— Note.— 35 Vie., No. 4, s. 27 is repealed. See now s. 447 of Criminal
Code. As to bona fide claim of right, see now s. 22 of Criminal Code.]
TU Brands Act of 1872 (35 Vict. No. 4) sec. 27.
A hona fde claim of right of property is a good defence to a charge of illegally
branding under s. 27 of the Brands Act of 1872.
This was a motion to make absolute a rule nisi for a prohibition
granted by Mr. Justice Harding, at the instance of John WilUams,
against James Clark Baird, Edmund Bellord Power, John Davis,
and John Clunn, of Cooktown, JJ.P., and Dominick Brannighan,
of Hidden Valley, near Cooktown, selector. Brannighan claimed
to have lost a bull calf with its mother in a scrub whilst driving
them with a mob of cattle, on January 27, 1884. The calf was
then unbranded ; and he did not see it or the mother until the
middle of the following December, when he saw both in a mob of
Williams' cattle, and the calf had Williams' brand upon it, and
was earmarked. He took both to his yard, where WiUiams saw
them, but did not see the calf suckling Brannighan's cow, as it
was alleged by the latter to have done. Brannighan, in evidence,
swore that his calf was eight or nine months old ; on the other
hand, an employee of Williams, named Culver, swore that the
calf was the offspring of one of WiUiams' cows, and was twelve
months old at least. The opinion of the Inspector of Brands,
also, was that it was at least twelve months' old. Brannighan
could not say whether the calf was not branded on the 29th June,
CRIMINAL REPORTS, 1860—1907. 167
1884, though it had the appearance of having been branded about „ Williams v.
imi 1 ,-1 1 Baird AND Others
beptember. The bench, consisting of the above-named justices,
convicted Williams of illegally branding the calf with his registered
brand, not being its lawful owner, and fined him £10, in default a
month's imprisonment.
The rule was granted on the grounds —
1. That there was no evidence that the offence was com-
mitted within six months before information laid.
2. That there was no evidence that the branding was done or
permitted wilfully.
3. That the conviction was against the evidence. Court
dismissed first ground ; Brands Act Amendment Act of
1884 apphes in this case.
Eeal moved the rule absolute. He stated the facts. The calf
was seen only once by prosecutor before it was branded ; and a
cow of defendant's had mothered it throughout. He submitted
that the question was on the second ground : Is a bona fide claim
of right an answer to a prosecution under the 27th section of the
Brands Act ?
Harding J. : As in a larceny case.
Butledge A.G. (Lilley with him), shewed cause for the magis-
trates, and submitted that by the evidence of defendant, in
December, 1883, the calf was being mothered by his cow and was
two weeks old ; and that in August, 1884, she produced another
calf. That was improbable ; it was a question of the usual
period of gestation. He cited Curran v. Dowzer, Q.L.J. , vol. II.,
p. 45, as to intention. While there must be reasonable proof on
the part of the prosecution that there was a wilful branding, on
the other hand there must be such ground for a claim of bona fides
as would convince reasonable men that the calf was the property
of the brander.
Lilley C.J. : On the question of bona fides, the magistrates
are judges of the facts, like a jury.
Butledge A.O. : The magistrates clearly disbelieved defendant's
evidence.
Lilley followed, and submitted that the onus of proof lay on the
defendant ; and that the fact was determined by the justices.
Chvhb Q.C: [Drake with him) showed cause for the prosecutor,
Brannighan, and submitted that the fact, as to a colour of title,
was determined by the justices, who were the proper tribunal.
The Court would not review their decision on the fact.
168 QUEENSLAND JUSTICE OP THE PEACE.
Williams v. Lilley C.J. : They must determine not only that it was not
his property, and whether his claim was a good one, but that it
was made in good faith. His claim was decided to be wrong,
but did he make it in good faith ? Did they determine that ?
Beal, in reply, submitted that the justices decided that wilfully
branding was intentionally branding. Defendant did not get the
benefit of a consideration of the real state of the law — that a bona
fide claim of right was a good defence.
Lilley C.J. LiLLEy C.J. : If they did not admit that defence, it would be
a mis-trial. If the only evidence that they did not admit is, as a
proposition of law, that they decided against him, it is not suffi-
cient ground. The rule is discharged with costs. As to the law,
we are quite clear that a party charged with an offence under this
section (No. 27) of the Brands Act can set up the defence that he
branded an animal and assumed the right of property in that way
under the bona fide behef that it was his property; in other words,
that a bona fide claim of right of property is a defence against a
charge, much in the same way that it is in larceny. When a man
takes property, honestly beheving it to be his own, and it turns
out that it is not his, he is not answerable to the law for a criminal
prosecution.
SoHcitor for applicant : Chambers, Brisbane ; agent for Barnett,
Cooktown.
Solicitor for prosecutor — Thynne, Brisbane.
Solicitor for Justices : The Crown Solicitor.
[Full Couet.]
REGINA V. JUDGE.
[2 Q.I,.J. 61.]
1885. Information — Description of person murdered.
1' The information eiarged the prisoner with murder, and the child who was
Lilley C.J. alleged to have been murdered was described in the information as a certain male
Harding J. ^j^jj^ ^.j^^^^^ lately before born of the body of her the prisoner, and that the name of
the murdered child teas to Her Majesty's Attomey-Oenerai unknown. There was
evidence that the child was bom three months after the prisoner's marriage, and
Ihat the prisoner's husband was not the father of the child.
Hdd, that the child was sufficiently described in the information.
This was a special case stated by Mr. Justice Harding : —
CRIMINAL REPORTS, 1860—1907. 169
1. The prisoner was tried before me at the Criminal Sittings Begina v. Jddoe.
of this Honorable Court, holden at Rockhampton, on the 21st
day of April, 1885, on an information presented on the same day,
whereby she was charged as follows : — " That Annie Judge on
the fifteenth day of December, in the year of our Lord one thousand
«ight hundred and eighty-four, at Sandy Creek, in the Colony of
Queensland, feloniously, wilfully, and of her mahce aforethought
did kill and murder a certain male child then lately before born of
the body of her the said Annie Judge, whose name is to Her
Majesty's Attorney-General unknown."
2. So far as it is material for the consideration of the point
leserved in this case the evidence was as follows : —
Jane Brown deposed amongst other things as follows : — " On
the 15th of December last I saw the prisoner She
appeared to be greatly in the family way Mrs.
Whattshell fetched the prisoner's husband home
The prisoner's husband fetched a nurse from Clermont. Mrs.
Parsons was her name."
Mary Ann Parsons deposed amongst other things as follows : —
■" On Monday, 15th December last, her husband, Mr. Judge,
came for me. . . . She kept saying there was no baby.
She said ' how do you think it could be a baby and I only three
months married.' Soon after this her husband came home. He
spoke to her and asked her to tell what was the matter. I said
to her husband, ' don't be rash ; try if you can't coax her to tell
ail about it.' She said to her husband, ' I won't teU you, I'U tell
Mrs. Parsons.' I went in and said, ' now come tell me what
you have done with it.' She said, ' rise up the corner of the
mattress behind me and you will find it.' I raised up the corner
of the mattress and I saw the child lying on its face. It was a
male child. I picked it up. . . . When I took the child
out I asked, ' who is the father of it ? ' She said, ' I've been but
three months married.' She told me who the father was. She
did not name her husband. . . . The prisoner gave no name
to the child. I never heard that it had any name of its own."
William Fitzmorris deposed amongst other things : — " I saw
the prisoner's husband there."
3. At the conclusion of the case for the Crown, I called the
attention of the Attorney-General to the state of the evidence,
and he did not ask leave to amend.
4. In my summing up I told the jury that it was necessary
for the Crown to prove that the name of the male child was to Her
170 QUIENSLAND JUSTICE OF THE PEACE.
Beoina v. Jddge. Majesty's Attorney-General unknown, and that if they did not
find it was they must find a verdict of not guilty.
5. I reserved the point as to the sufficiency of the evidence to
support a conviction for the consideration of this Honorable
Court.
6. The jury found a verdict of guilty, and I passed a sentence
of death.
(Signed) Geobge R. Haeding, J.
5th May, 1885.
The question for the Court was whether the description of the
child alleged in the information to have been murdered, as of
name " to Her Majesty's Attorney-General unknown " was a
sufficient description.
The Attorney-General {A. Rutledge), and Real with him, for the
prosecution.
Mansfield for the prisoner.
The Attorney-General, in support of the conviction, submitted
that the evidence showed that the child had been lately born of the
body of Annie Judge, but had never been seen alive, and had
not acquired a name from Judge, or from anybody else, or the
reputation of such. He cited Reg. v. Bliss, 2 Moo. CO., 93 ;
and Reg. v. Willis, 1 Den. C.C., 80. In the latter the prisoner
was not a married woman ; here she was.
Lilley G.J. : There it was a bastard of no name. Here being
bom in wedlock, the question is does it acquire the name of the
husband ? Is a name more than a matter of reputation 1
Strictly speaking, if the child had been born in the house, and
handed about for a day, it would probably have the family name
at least, by reputation. It had not been baptised. Was there
proof of its legitimacy, properly received ? Ordinarily a parent's
evidence cannot be heard to bastardize his own offspring on grounds
of public morality and decency. Non-access cannot be sworn to.
Still there is no objection to a woman swearing that the child
is not that of her husband.
The Attorney-General : The declaration of Judge to the witness,
Parsons, is conclusive that the child was a bastard. There can
be no doubt the child had not obtained a name by reputation, as
it was killed almost upon birth. A name itself is acquired by
reputation — Luscombe v. Yates, 5 B. <& Aid., 544. The fact that
the child is accurately described so as to point to the identity of
it, as the victim of the crime beyond a doubt or question, fulfils
CEIMINAL EEPOETS, 1860—1907. 171
the requirements of the law ; and the child, having been strangled Eeoina v. Judoe.
almost at the instant of birth, had not acquired any name.
Real followed : The description was sufficient apart from
description of name unknown. Reg. v. Waters, 1 Den. G.C., 356.
All names are acquired by reputation. Bastards have a right
to neither parent's name. Ste'ph. Comm., Ed., '74, Vol. II., 299w.
This case is within the one in Denison ; and the child here was a
bastard. Here, first, the woman denied having a child ; second,
concealed the fact from her husband. These two circumstances
are stated as evidence of illegitimacy, in Morris v. Davies. There
was evidence for the jury of illegitimacy ; and nobody had
imputed the name of Judge. The description was therefore
sufficient to identify the subject of the crime.
Lilley C.J. : She imputed neither name, nor parentage to
Judge.
Mansfield : There is a fatal variance in the information if the
child was legitimate. The first part would then be sufficient —
" A certain male child then lately before born of the body of her
the said Annie Judge." Reg. v. Biss {rep. also 8 Gar. and P.,
773) ; Reg. v. Campbell, 1 Car. and K., 82, also cited. Reason-
able diligence must be used by Crown. Here they did not use
it. Reg. v. Willis, and Reg. v. Hogg, 2 Moo. and Rob., 380 ;
and R. v. Waters. The child was illegitimate ; they do not apply
then unless the child here is proved illegitimate. Neither husband
nor wife can be allowed here to prove non-access. In A. v. A.,
25 L.J. Gh., 136, the M.R. allowed the wife to be asked how long
she had known her husband before marriage ; on her answering
more than a year, he allowed no further question as to access. The
presumption here is in favour of legitimacy. There is no evidence
of concealment from husband more than from anybody else.
There is no evidence of illegitimacy to rebut the contrary pre-
sumpton. Immediately on birth, being her child, it should take
the name of Judge. Steph. Comm., Ed. '74, Vol. II., 299 n.
Lilley G.J. referred to Hargrave v. Hargrave, 2 Car. and K., 701.
Lilley C.J. gave judgment as follows : — In this case the IJiHey C.J.
information charged the prisoner with murder, and the child
who was alleged to have been murdered was described in the
information as "a certain male child then lately before born
of the body of her the said Annie Judge." If the information
had stopped there, she being a married woman, I think the law
must be taken to be that the child had acquired from the moment
172 QUEENSLAND JUSTICE OF THE PEACE.
Eeqina v. Judge of j^g birth, if a legitimate child, the reputation of her name.
LilieyC.J. That name would be Judge. I think it would be a sound practice,
which ought to be followed in the Crown Office, to describe the
child by the name of the married woman, if not baptised. In
other words, I think it is the law that a child born legitimately of
married people has the name of the presumed father. Under
these circumstances, if a child is born of a woman after her
marriage, it is presumed to be legitimate ; but that is a presump-
tion which may be rebutted ; and, I suppose, it was by reason of
the fact that in this case it was rebuttable that the Attorney-
General added these words that the name of the murdered child
" Is, to Her Majesty's Attorney-General, unknown." If our idea
of the law is correct that the child born to married persons bears
by reputation from the instant of its birth the name of the family
into which it is born, it would not be right on the part of the
Attorney-General to describe it as a child whose name to him
is unknown. I presume these words were put in because the
Attorney-General knew that the legitimacy of the child was
in question, or Hkely to be called in question. As the reputation
of the name of Judge, which would attach to the child under
ordinary circumstances as the child of a married woman, is
rebuttable, it seems to me that there was very cogent evidence
to go to the jury to show that the child was illegitimate, and
therefore was not entitled to the name of Judge, and by reputation
had not acquired the name, or right to go by that name. The
mother did in fact conceal the child, and then denied that the
child had been born, and wished to conceal the fact altogether
from her husband, and in the next place she stated to the married
woman in whom she was at last induced to place confidence, that
the child was the child of a person whose name was not that of the
husband. Assuming that she had her senses about her — and
there is no evidence that she had not — it is fair to believe that it
was an illegitimate child, whose name was to the Attorney-
General unknown ; because in law it is clear that an illegitimate
child has no right to the name of either its father or mother, unless
by reputation. That may arise by imputation very quickly, a
few moments after birth. If for ever so short a period of time
a child is called by the name of one or other of the parents, it is
sufficient. This child was murdered a few moments after birth ;
and there is no evidence that she, or anybody, gave any name
to it. It was murdered almost immediately after it was born.
I think the information is perfectly correct. It was a child whose
CRIMINAL REPOETS, 1860-1907.
173
name was to Her Majesty's Attorney- General unknown. The Begixa v. Jodqe.
jury found it was a child whose name was to him unknown, and Lilley C.J,
I think the conviction must be affirmed.
Haeding J. : The judgment of The Chief Justice, as far as it
touches upon the case, I fully concur in ; the trial took place
before me at Rockhampton. The prisoner was not defended ;
there was no help for it, as no counsel, or soUcitors, or anybody
who could possibly defend her was present ; a Judge under these
circumstances, has, if possible, a more careful duty to perform
than if counsel were preserit. I watched the case with a view
of saving and bringing out all points that I could see, which should
be brought out for the prisoner, and amongst others arose the
question as to the admissibility of the piece of evidence which
has been pointed to, and to the possibility of a variance having
arisen. There were two courses to take. To reject the evidence,
which I should have done and have always done where the
incUnation of my mind has been that it was not receivable. The
late Mr. Justice Pring, when at the bar, on one occasion where a
prisoner was on his trial for murder, strongly argued before me
that certain evidence should be received ; he argued, receive
the evidence and reserve a point if there is any doubt about its
admissibiUty. I held on the other hand, viz. : — I was satisfied,
that, if not receivable, it did not lay upon me to allow inadmissible
evidence to go to the jury, and-allow a prisoner to be convicted
on insufficient evidence and go through the torture of delay
and be afterwards discharged, on evidence which I considered
inadmissible. I follow the course, I beUeve, taken by all Judges
at the trial of a prisoner, to reject all evidence as to the inadmissi-
biUty of which I have no doubt myself. If my opinion is in
favour of the admissibility of the evidence, yet if, from my
knowledge of the law and the authorities, I see that behind that
opinion there is room for an arguable case, I consider it my
duty to reserve a case, however strong m.y opinion may be. I
took that course here. The other course was to direct the jury
that on the birth of the child it acquired the name of its parents
by law, and that that being so, the Attorney-General must have
known its name, and to have directed an acquittal. Being then
as now of the opinion that the information was sufficient, but yet
having then in my own mind's eye the series of authorities, perhaps
not in the accurate way in which they have been put at the bar to-
day, and knowing that the question was arguable, I thought
it well to reserve the point and having done so and the matter
Harding J.
174
QUEENSLAND JUSTICE OF THE PEACE.
Beoinau. Oddob. having been argued at length at the bar, I think the conviction
Harding J. must be upheld, and for the reasons stated by His Honor The
Chief Justice.
Mein J. Mein J. : I am of the same opinion. The Chief Justice has
so fully entered into the circumstances of the case and the law
that there is no need to further enter upon the question. I consider
that the law assumes that a child born in wedlock is the child of the
husband, and that it takes by reputation the name of the husband,
until proved to be illegitimate. In this case the question reaUy
turns upon the fact whether there Was sufficient evidence to go
to the jury to prove the child illegitimate. I think there was.
The concealment of birth by the mother from her husband and the
denial of having given birth to the child come within the case of
Hardgrave v. Hardgrave. I think, the mother having done that,
there was evidence to go to the jury as to the illegitimacy ; and
that as the child was killed immediately after birth it could not,
being illegitimate, by any possibility have acquired a name by
reputation. The Attorney-General described the child correctly
in the indictment.
Conviction affirmed.
Solicitor for Crown : Crown Solicitor.
1885.
21st July.
Lilley C.J.
[Ipswich Circtjit Cotjet.]
REGINA V. ALEX. DIXON.
[2 Q.L.J. 81. Note. — 29 Vic, No. 6, s. 65 is repealed. See now definition of
dwelling-house in s. 1 of Code. See R. v. Hamilton, 3 Q.L.J. 78, post.]
29 Vict., No. 6, s. 65 — Dwelling-house — Canvas.
Any enclosed structure wherein a man dwells for the time being is a dwelling-
house within the meaning of the Act.
In this case, the prisoner was charged with the larceny of a
watch and other articles, from the dwelHng house of the prosecutor.
The prosecutor was then and had been for about six months prior
to the date of the alleged offence, Uving in a tent which had four
sides, through one of which ingress and egress were effected by
lifting a flap which could be closed by tying down or otherwise
securing it. The tent was on prosecutor's own land.
CRIMINAL REPORTS, 1860-1907.
Power, Acting Crown Prosecutor, in opening, referred to the
point whether a tent was a dwelling house within the meaning of
the Act— 29 Vict., No. 6.
Lilley C.J., in summing-up, said : " a dwelUng house must be,
within the statute, the abode" for the time being of the owner of
the property stolen. There is no doubt that this is of canvas,
but it is not essential to the structure of the house that it should
be of any one material. It is material that it should be closed,
and that it be the place where a man dwells for the time being.
It may be of stone, brick, wood or mud ; and in some countries
even of paper. Very elegant houses in Japan, even whole cities,
are built of paper — papier mache. It appears to me that if a
man on his own land puts up a structure of canvas, and goes there
to eat, sleep, and dwell, it is essentially, under the statute, his
dwelling house."
175
Beoina v. Alex.
. DrxoN.
Lilley C.J.
[Pull Court.]
REGINA V. PIEREMONT.
[2 Q.L.J. 93.— Note.— Sec. 206 of 38 Vic, No. 5 is repealed. See now see. 521 (d)
of the Criminal Code to lilce eSeet. Case referred to in R. v. Duncan, 4 Q.L.J.
219, post, and R. v. Hamilton 9 Q.L.J. 251, post.]
Insolvency Act of 1874 (38 Vict., No. 5, s. 206) — Disposal of goods
other than in the ordinary way of trade.
A person disposes of goods other than in the ordinary way of his trade within
the meaning of s. 206 of the Insolvency Act, who puts them away under such
circumstances that he exhibits an intent, and that the jury are satisfied that he
puts them away beyond the reach of his creditors, under the statute.
Held also, that it is not necessary that a man should absolutely part with the
property, if he puts them beyond his power of control, or that of his trustee,
assuming that the disposition was not in the ordinary way of his trade.
This was a special case stated by Mr. Justice Mein.
The prisoner was adjudged insolvent on the 1st May, 1885, on his own petition,
which was presented at the District Registry in Insolvency at Townsville, on the
17th April, 1885, and was tried before me at the last Criminal Sittings of this
Court, held in Brisbane, on a charge of misdemeanour under s. 206 (15) of The
Insolvency Act of 1874, for having at Townsville on the 16th March, 1885, within
four months next before the presentation of his petition for adjudication, unlawfully
disposed of, otherwise than in the ordinary way of his trade, certain property of
his, consisting of 91 cases of tea and 25 boxes of tea, which he had obtained on
credit and had not paid for.
1885.
December.
176 QUEENSLAND JUSTICE OF THE PEACE.
Keoina v. The prisoner started in business as a produce merchant at Townsville, in the
PiKBEMONT. month of August, 1884, with a capital, according to his own statement, of £125.
On an examination before this Court in its Insolvency Jurisdiction which was^
put in evidence the prisoner admitted that he did not pay this capital into any
bank, and stated that he used it in purchasing goods for cash in Sydney. The
prisoner continued to carry on the business t)f a produce merchant at Townsville,
selling wholesale and retail, up to the time of the presentation of the petition.
In the month of December, 1884, he received from the firm of Ponder, Evans &
Co., of Sydney, tea merchants, £235 123. 5d. worth of tea, made up of 100 boxes,
8 quarter-chests, 4 three-quarter chests and 79 half-chests, which he had purchased
from them on credit, the purchase money being represented by a promissory
* note of the prisoner's in favor of that firm, which matured on the 17th of April,
1885, and has never been paid. The tea so received by the prisoner was bonded
by him in his own name in Townsville, and the whole of it, with the exception
of about ten half chests, still remained in bond in the prisoner's name, and unsold
at the time of his insolvency.
In the month of November, 1884, the prisoner was indebted to the Queensland
Mercantile and Agency Co., Ltd., of Brisbane, of which Mi. N. J. Howes is a
Director, in the sum of £250, on an open account. He incurred a further liability
to that company in December, also on an open account, to the extent of about
£80. On the 21st January, 1885, a promissory note of £266 Os. 4d.. made by him in
favor of that company was dishonored ; and at the beginning of March, 1885,
the total liability of the prisoner to the Q. M. and A. Co., Ltd., including his liability
in respect of the dishonored promissory note amounted to about £680.
On the 12th January, 1885, the prisoner wrote to Mr. Howes informing him that
money was " coming in very badly since the holidays," and requesting him to
renew £150 of the amount of the promissory note which would fall due to his
company on the 21st of that month. This request was not complied with, and on
the 21st January, the day on which the promissory note became due, the prisoner
sent an urgent telegram to Mr. Howes in these terms : — " Bill due to day short of
£150 wire credit." This further request was also not complied with, and the
promissory note, as already mentioned, was dishonored, and it has never since
been paid.
In the early part of February, 1885, the prisoner visited Sydney. Whilst he
was there he opened an account at a Bank in the fictitious name of Henry Harris,
and deposited to the credit of the account £607 7s. 5d. Upon his examination
before this Court, he stated that he drew the whole of this money out of the Bank ;
that he kept no books with reference to it, that it was a trust account, and that
he gave the name of Harris because he " did not want it to appear that he had an
account at Sydney." He also admitted that information with regard to this
account had been obtained by his trustee through a bank slip which the trustee
had found amongst his papers, and which he (the prisoner) did not know was in
Townsville.
During the same visit to Sydney the prisoner between the 7th and 12th of
February, bought from the firm of Ponder, Evans and Co., tea to the value of
£446 7s. Id. The tea so purchased was done up in packets of lib. each, in tins
of 51b. each, and in boxes of 101b. each. The lib. packets amounted in value
CRIMINAL REPORTS, 1860-1907. 177
to £380 13s. 4cl., and were marked by Ponder, Evans and Co. with a special brand, Beoina v.'
r T "ff H W" IW O W T
designed by the prisoner, which included the name of the prisoner and his address
as a produce merchant at Towusville. The whole of this tea was purchased on
credit, and the purchase money was represented by a promissory note of the
prisoners in favor of Ponder, Evans and Co. for £446 7s. Id. dated 5th March,
1885, and payable four months after date. The promissory note has not, nor has
any of the purchase money of the tea, ever been paid.
The prisoner on his examination before the Court alleged that he was induced
to purchase the second lot of tea upon the representations of a Mr. Howlett,
who is at present the trustee of his estate, and was at that time acting as the
agent in Queensland of Ponder, Evans and Co., that another firm in Townsville
was then selling similar tea. Mr. Howlett, however, positively denied that he
had ever made any such representations to the prisoner, and asserted that he
neither induced the prisoner to purchase the tea nor brought it under his notice
in any way ; that the prisoner had purchased the tea from Ponder, Evans and Co,
on his own motion, and after a personal examination and approval of the tea.
The prisoner, before the end of February, returned from Sydney to Townsville.
Whilst he was passing through Brisbane, he waited upon and had a conversation
with Mr. Howes. During this conversation, reference was made to the state of
the prisoner's account with the Q. M. and A. Co., Ltd., and Mr. Howes told the
prisoner that it was as large as his company would like it to be, and that they
would like it to be reduced. No reference was made to tea or any other goods,
nor was anything said about the prisoner sending to the Q. M. and A. Co., Ltd.,
any consignments.
The tea purchased in February was shipped by Ponder, Evans and Co. to the
prisoner in 91 cases containing the lib. packets and the 51b. tins, and in 25 boxes
containing lOlbs. each, on or about the 4th March, 1885, and was conveyed from
Sydney to Brisbane by the S.S. " Leura," was transhipped from the " Leura " to
the S.S. " Keilawarra " in Brisbane, and was conveyed by the " Keilawarra " to
Townsville. There was no direct evidence as to the date on which the " Keila-
warra " reached Townsville, but the insolvent stated in his examination before
the Court that in the ordinary course, the " Keilawarra " would have reached
Townsville about the 11th March.
On or about the 13th March, 1885, the Q. M. and A. Co., Ltd., received from
the prisoner a letter. This letter was not produced at the trial, and Mr. Howes
stated that neither he nor the clerks in his company's employment could find
it after a diligent search. Mr. Howes stated that the letter consisted of only a
few lines, and that in it the prisoner asked his company if they would make him
" advances over tea and other goods." In reply to this letter Mr. Howes, in the
name of his company, sent the following telegram, dated 13th March, 1885.
" Ship tea on consignment will place five hiindred your credit against over-
draft account reply if sending.''
The prisoner replied by telegram, dated 14th March, 1885, in the following
terms : —
" Goods will leave here Tuesday, sell to best advantage."
On the 16th March, 1885, the prisoner, without having examined or landed
M
178 QUEENSLAND JUSTICE OF THE PEACE,
Bbgina I). any of the tea that had arrived at Townsville in the " Keilawarra " consigned 66
' cases and 25 boxes of it to the Q.M. and A. Co., Ltd., and obtained from the agents
of that steamer at Townsville a shipping receipt or bill of lading which acknow-
ledged that the prisoner had shipped by the " Keilawarra " to Brisbane, 66 cases
tea and 25 boxes tea, consigned to the Q.M. and A. Co., Ltd., the freight thereof
from Townsville, amounting to £9 8s. lOd., being charged " on." On the same
day the prisoner sent the shipping receipt to Mr. Howes with a memorandum of
which the following is a copy : —
" Enclosed please find S/R. for 91 packages tea which please sell on my
account. The boxes are invoiced to me at 9d. per lb. and the pink packets
at Is. 4d., other packets at Is. 2d. in bond. More goods will follow next
week."
The tea so sent to the Q. M. and A. Co., Ltd., reached Brisbane in due oouise
and was placed by that company in bond in their name. They subsequently sold
a small parcel of it and the remainder continued in bond in their name, until the
month of June, 1885, when it was transferred to the trustee of the prisoner's
estate. The prisoner had not previously consigned any goods to the Q. M. and A.
Co., Ltd.
On the same 16th of March the prisoner caused the balance of the tea that
reached Townsville in the " Keilawarra," consisting of 25 cases, to be taken
from the " Keilawarra " to the S.S. " Ocean," by a lighter, and the cases so
placed on board of the " Ocean " were conveyed by that steamer to Sydney,
consigned to a firm there named Symonds, Howes and Co., of whom Mr. Symonds
was the prisoner's brother-in-law. No bill of lading of the tea so consigned to
Symonds, Howes and Co., was produced at the trial. It was, however, proved
that Symonds, Howes and Co., had received the tea ; but there was no evidence .
to show how that firm had disposed of it.
The prisoner on his examination before the Court stated that the tea so sent
by him to Symonds, Howes and Co., consisted of 15 cases, each containing 12 tins
of 51b.., and 10 cases each containing 80 packets, and that he sent it " for sale
by them and returns." The prisoner also admitted^that, when he sent the tea
to Symonds, Howes and Co., that firm held an unmatured P/N of his for
£135 lOs. 6d. which was afterwards dishonored. Mr. Howlet deposed that he
had made application to Symonds, Howes and Co., for the return of the tea but
they had refused to give it up and that he was suing them in Sydney for its value.
On his examination before the Court, the prisoner stated that he took with him
from Sydney in February samples of the tea that he had purchased from Ponder,
Evans and Co., and that he tried from that time up to the time he sent the tea
to Sydney to sell it, but that it was " rubbish badly packed and imsaleable,"
and that he " thought it would realize more in Sydney or Brisbane than in Towns-
ville, and that was why he sent it to Sydney." He at the same time admitted
that he had never sent any other consignment of goods to Sydney.
Mr. Howlett deposed that the prisoner told him, about the time when he con-
signed the tea to the Q. M. and A. Co., Ltd., and to Symonds, Howes and Co.,
that " trade in Townsville was never better than it was at that time."
Mr. Howlett also stated that, about a week or ten days before the 16th March,
CEIMINAL REPORTS, 1860-1907. 179
he had sold teas in Townsville, of the same description as those that the prisoner Begina u.
had purchased from Ponder, Evans and Co., and at the same prices as had been ieke^
charged to the prisoner.
The prisoner did not at any time inform Ponder, Evans and Co. of either of the
consignments by him to the Q.M. and A. Co., Ltd., and Symonds, Howes and Co.
At the conclusion of the evidence for the Crown, Mr. Lilley, counsel for the
prisoner, submitted that there was no case to go to the jury, and asked me to direct
the discharge of the prisoner. I refused to comply with his request, and the
prisoner was found " Guilty " by the jury.
After the verdict of the jury had been returned and recorded, Mr. Lilley
requested me to reserve the following questions of law for the consideration of
this Court : —
1. Was there any evidence as to disposal of the goods, or any of them, within
the meaning of the section ?
2. Was there any evidence that the defendant disposed of them otherwise
than in the ordinary way of trade ?
The Attorney-General, who prosecuted on behalf of the Crown, thereupon
subniitted that Mr. Lilley was too late in preferring his request, as the statute
required that the application of prisoner's counsel should be made " diiring the
trial," and argued that the trial had been concluded by the return of the jury's
verdict. I overruled the Attorney-General's objection and state this case in
consequence of the application by the prisoner's counsel. If such application
had not been made, I should not, in the exercise of my own discretion, have reserved
any question for the consideration of this Court, as I was, at the time, satisfied
that there was sufficient evidence to support the conviction.
I did not pass judgment on the conviction, but postponed such judgment until
the questions reserved by me had been decided by this Court, and committed the
prisoner to prison, and he now is in prison.
The question for the opinion of the court substantially is : —
Was there any evidence to support the conviction ?
Signed : —
Chakles Sttjam Mein, J.
Supreme Court, Brisbane,
28th November, 1885.
Real and Kinnaird Rose appeared for the Crown.
Lilley opposed the conviction and opened his case.
Lilley C.J., referring to the Attorney-General's objection to
Mr. Lilley' s request at the trial to reserve a case, said : I am of
opinion that a motion in arrest of judgment may be moved even
after sentence, so long as the proceedings are still going on, if the
prisoner has not been removed. During the trial it certainly
can be raised. The proper time is after the verdict is brought in.
He referred to Reg. v. Martin, 1 Den. G.C., 398, and 18 L.J., M.G.,
137. In the English Act the word is " may ; " here it is " shall."
Apart from this there is the common law right of the Judge to
180 QUEENSLAND JUSTICE OP THE PEACE.
Regina r. reserve a point for his brother Judges. We hold that the
PlEREMONT. /-I n 1 c -T
Attorney-Generals objection was lutile.
Lilley submitted that under the subsection, " disposal " means
that a man m.ust divest himself of some property in the goods ;
must lose it to himself and his creditors. If he joins them in
security to another, it is pawn ; if he consigns them the money
is his or his creditors. Had the prisoner's goods been sold by the
Q.M. & A. Co. at good prices, and the money held for his trustee,
what objection could there be to that ? Then there was no
evidence as to the ordinary way of trade by a commission agent
and produce merchant at Townsville. There may be abundant
cases of fraud, and abundant provisions against it, but if he does
not come within the particular section under which he is indicted,
there cannot be a conviction. He did not dispose of the goods: ;:
if the Q. M. & A. Co. might hold the goods consigned them by
him, or the money proceeds from their sale, that was pawning.
Disposing is selling.
Harding J. : " Dispose " is the highest word in the subsection ;
"big enough to include pawn " and " pledge."
Lilley : On the cases decided, dispose does not include pawning
and pledging. Beg. v. Bolus, 11 Cox C.C. 610 ; 23 L.T., N.S.,
339 ; Ex parte Brett ; In re Hodgson, 1 Ch.D., 151. Reg. v.
Thomas, 11 Cox C.C. 535.
Harding J. : Could he have got his goods back again ?
Lilley: Most decidedly; supposing Symonds, Howes. & Co.
had gone insolvent, he could have stopped them in transitu.
Lilley C.J. : But they were never taken on shore at Townsville.
They were shipped from Sydney and were then sent back to another
merchant in the same street in Sydney.
Lilley : He could have stopped them in transitu. Until they
came into the hands of Symonds, Howes & Co., he had not dis-
posed of them ; and directly they fell into their hands in Sydney,,
the disposal if complete, was complete outside the jurisdiction
of the Court.
Lilley C.J. : I do not think it matters under this statute where
the goods are that are disposed of ; if it was property he was-
trading with, or could trade with here.
Lilley cited Beg. v. Bandinty, 4 Fos. and Fin., 165.
Lilley C.J. : That was a conspiracy in Paris ; here it is a case
of bringing goods within the jurisdiction.
CRIMINAL REPORTS, 1860-1907. 181
lAlley : But he disposed of them in Sydney. He referred to Eeqina o.
1st subsection of the section (206).
lAlley G.J. : I think the word " dispose " is used here to avoid
the technical consideration of pawn or pledge.
Lilley cited Reg. v. Manser. Prisoner never disposed of the
goods. He consigned to the Q. M. & A. Co., to sell at the best
advantage, and to Symonds, Howes and Co., for sale and return.
They could not hold as security against his account current
with them. He cited Spalding v. Ruding, 6 Beav., 376. There
must be some divesting of interest in the insolvent. He could
at any time have brought action against Q. M. & A. Co. to recover
the goods ; and he could have had them back at any time, upon
paying charges, if any, upon them. They could not hold them to
satisfy the general account. Verivs v. Jewell, 4 Comp. 31 ;
Saddler and Others v. Whitmore, 5 Jur., O.S., 315 ; Gibson v.
Bray, 1 Mo., 519. Then, as to " the ordinary way of trade,"
there is no evidence of what is the ordinary way of trade of a
commission agent and produce merchant at Townsville.
Mein J. : There was some evidence.
Lilley G.J. : The Court will generally refuse to send back a
case reserved for amendment. Roscoe, p. 231, referred to.
Lilley : There is no evidence on the point. Prisoner on the
other hand would be doing probably the best thing in sending
his goods from the smaller to the larger market. The verdict
should be set aside.
Beal, in reply : The section applies to disposal of them in any
possible way. Part of these goods was sold. If sending alone
was not disposal, part were sent to auction and sold. In Ex parte
Brett, they were consigning merchants, and the question was
whether they sent goods to AustraUa in the ordinary course of
trade. In Reg. v. Thomas, Lush J., says, " You cannot say
that disposing of stock in trade by a bill of sale, is disposing of
it in the ordinary way of trade ; that must be by selUng over the
counter," p. 538. He sent the goods after he was specially told it
would be placed against his overdraft with the Q. M. & A. Co.
It cannot be the ordinary course of honest trade to ship goods to
Brisbane from Sydney and then on further to Townsville, for the
purpose of bringing them back again. It cannot be "in the
ordinary way of trade " to dispose of goods by way of fraudulent
preference. There is sufficient on the case to show that this
could not be " in the ordinary way of trade." He received
182 QUEENSLAND JUSTICE OF THE PEACE.
Regina v. ^jj^g goods ; had not paid for them ; sent some to Sydney where
' he had purchased them, and not to the person from whom he had
purchased them, for sale and return.
Harding J. : You have enough to show what was done ; but
not enough to show what should be done.
Lilley G.J. : The learned Judge will amend the case. You,
Mr. Real, may refer to the evidence ; and the Judge will check
you and put what you refer to into the case.
Real did so. He contended : Prisoner had hot paid for these
goods or any of them, and he had disposed of them in a way
which would amount to fraudulent preference ; that is, not the
ordinary course of trade.
Hearing adjourned ; the Judge to amend case.
The following amendment to the case was added : —
I DESIRE to amend the Case already submitted by me and filed on the 28th
November last, by the addition of the following Statements : —
At the trial of the prisoner, Mr. Howes gave the following, amongst other evi-
dence that I do not think it necessary to specially refer to.
On examination in chief by the Attorney General : —
" When a person in business sends goods to another for sale the seller places
" the proceeds, as a matter of course, to the credit of the person who
" sent the goods ; that is what is usually done in business unless there
" is a special arrangement to the contrary."
On cross-examination by Mr. Lilley : —
" I have had plenty other goods sent to me from the North in this way.
" It is quite an ordinary thing for a firm up North who have unsaleable
" goods to send them down to Brisbane for sale on consignment. We
" received the tea on consignment to sell to the best advantage. The
" proceeds of the sale were not sufficient to pay the charges, and we
" handed over the tea unsold to the Trustee. We offered the tea to
" travellers, and it was not a saleable line : most of it was packet teas."
On re-examination by the Attorney General : —
" I have not had plenty of goods sent to me by people who have gone insolvent
" B. month after they sent them. It is quite the ordinary thing for
" persons to send down goods to Brisbane for sale on consignment
■' within a month of becoming insolvent, if they think in their judgment
" it is the best thing that can be done with the goods. I don't say
"it is quite the ordinary thing for persons to send a large parcel of
" goods to one of their creditors, and go insolvent a month afterwards."
In my charge to the jury, I told them, with respect to the teas consigned by the
prisoner to Symonds, Howes & Co., and to the Queensland Mercantile and
Agency Co., Ltd., respectively that if they were satisfied that the teas so
consigned were, in either case, sent to the consignees in order that they might
CRIMINAL REPORTS, 1860-1907. 183
appropriate the goods, or the proceeds of their sale In liquidation of any subsisting Begina v.
liability of the prisoner's to them, either with a view to give such consignees a ^ iebe o .
preference over the other creditors of the prisoner, or so that the effect thereof
would be to defeat or delay the creditors of the prisoner, or to diminish the property
to be divided amongst his creditors, there would be a disposal by the prisoner
of the goods otherwise than in the ordinary way of trade ; and that, as by the
Insolvency law the transaction would be fraudulent, it would be held to have been
prima facie tainted with fraud, and the onus would be thrown upon the prisoner
of satisfying them that, in the particular transaction he had no intention to defraud.
Charles Stuart Mbin, J.
Supreme Court, Brisbane,
2nd December, 1885.
On Thursday, 3rd December, Lilley submitted that from the
cross-examination of Howes it might be in the ordinary course
of trade. There is no evidence that prisoner's act was not in the
ordinary course of trade ; that is his particular trade in Towns-
viUe. The Crown to prove it not so, should have put a witness
in the box to ask him if he were acquainted with the business of
a produce merchant and commission agent at Townsville, and so
forth. It was never shown that Howes had any particular
knowledge of business at all. The conviction should be quashed.
Lilley C.J. : This is a special case stated by the learned Judge Lilley C.J.
for the opinion of the Court, and the question, " was there any
evidence to support the conviction." The prisoner was indicted
under subsec. 15, of s. 206, of our Insolvency Act, for having within
four months next before the presentation of his petition for
adjudication, unlawfully disposed of, otherwise than in the
ordinary way of his trade, some portions of his property which he
had obtained on credit, and not paid for. Upon that indictment
of course the jury must be satisfied before they acquit, that he
had no intention to defraud. I have generally told a jury that
they must be satisfied that there must be some prima facie case
of fraud before they can deal with him safely under this particular
section ; the evidence must show some prima facie case of fraud
against him. If a man makes a disposition of his goods in such a
way as to be obviously out of the ordinary course of trade, the jury
may infer from that that he had some intent to defraud. The
question really in this case for our determination is, was there any
evidence that he disposed of them in any way other than the
ordinary way of trade. AU other matters under the subsection
are beyond dispute ; they were all proved. Now Mr. Lilley has
argued that, before a man can be charged with disposing of goods,
he must absolutely part with the property in them. I cannot
184 QUEENSLAND JUSTICE OF THE PEACE.
Eegina v. read the section in that way. I think if he puts away the goods
PlEBEMONT. *' , 1 ,
or part or them under such circumstances that he exhibits an
Lilley C.J. intent, that the jury are satisfied that he puts them away beyond
the reach of his creditors under the statute, he might be held
guilty of a misdemeanour under the subsection. It is not neces-
sary that a man should absolutely part with the property, if he
puts them beyond his power or control, or that of his trustee for
division of the proceeds amongst his creditors, assuming that the
disposition was not in the ordinary way of trade. The most
important cases that have been cited were Ex parte Brett, In re
Hodgson, and The Queen v. Thomas. In Ex parte Brett the
Judge made an observation to which I fully subscribe : You
cannot convict a man of one particular charge by showing some
fraud which estabhshes another charge. In other words, you
must prove the offence which you charge against a man, but the
same set of circumstances may point to two distinct offences,
and justify a conviction for one offence or the other. Take this
statute for instance. Here is this subsection : it is an oSence
to dispose of goods otherwise than in the ordinary way of trade,
with intent to defraud, of course. Under subsec. 2 of another
section, 208, if he has, intending to defraud his creditors, made
any gift, deUvery, transfer of, or charge on his property, he may
be found guilty of a misdemeanour under the act. Well, a de-
livery is a disposal of goods ; so the same circumstances which
point to an offence under the 15th subsection of s. 206, may point
to a conviction under subsec. 2, of s. 208. Or again, circum-
stances that justify a conviction under that subsec. 15, may justify
a conviction iinder subsec. 14, of s. 206, for carrying on business in
property obtained on credit under false pretences, and not paying
for the same. So if Ponder, Evans & Co., had prosecuted him
for that offence, he might on the same set of circumstances have
been found guilty for that. Looking at the particular offence
A\ith which he is charged, is there any reasonable evidence on
which the jury might hold him to be guilty ? The facts are in
very narrow compass ; within the four months previous to
presentation of his petition, he orders two large parcels of goods
from Ponder, Evan & Co., amounting in the aggregate to about
£600. A portion of them he sent to the Queensland Mercantile
& Agency Co. for disposal : they say on consignment for sale.
Another large consignment he sent to his brother-in-law in
Sydney, for disposal on consignment and return. Whether he
intended that, or not, is a question for the jury. At the time he
CRIMINAL REPORTS, 1860-1907. 185
delivered these goods to the firm of which his brother-in-law was a Reoina v.
1 ., . T 1 , r. ■. r , PlEKEMONT.
member, there was evidence that that firm were creditors of the — -
insolvent. There was also clear evidence that the Queensland LiHeyCJ.
Mercantile & Agency Go. were creditors of the insolvent at the
time they received the parcel of goods he transmitted to them.
The question for the jury really was, was that a fraudulent prefer-
ence ? The Judge rightly directed the jury that that was a
fraudulent preference, if there was an intent to prefer. If he
intended when giving them these goods to do so by way of prefer-
ence, there was undoubtedly a fraudulent preference, because
he was unable to meet his engagements at the time he dispatched
these goods to the Q. M. & A. Co., and to the firm which included
his brother-in-law. That was a fraudulent preference. Well,
now, it seems to me, it may be a mere question of law under
this subsec. 15, whether a man may make such a disposition that
the Judge may be able to say that in law it was a fraudulent
preference ; but generally speaking the cases that come under this
subsection must be questions of fact for the determination of the
jury. To dispose of otherwise than in the ordinary course of trade
involves a question of fraud ; goods must be disposed of fraudu-
lently, or the jury must fail to be satisfied that they were dis-
posed of with intent to defraud. Fraud is manifold and various,
and it would be impossible to lay down any absolute rule of
judgment for Judge or Court in respect of fraud, inasmuch as the
rule for the construction of such conduct must be as various as
fraud itseH. It is the same in respect of trade. It would be
impossible to say in each particular case, as a matter of fact,
and especially in a new industry, what is the ordinary course of
trade. There are cases in which no doubt it is obvious to ordinary
common sense that the conduct of the insolvent was not in the
ordinary course of trade. For instance, in that case of Reg. v.
Thomas, in which I was surprised to see, Mr. Justice Lush felt
it necessary to consult his colleague on circuit, in which a
grocer in the village of Cheadle executed in' favour of his
sister, to whom he was indebted, a bill of sale on the whole of his
property, within four months of his insolvency, it seemed to me
so obvious to ordinary sense that that could not be the ordinary
course of trade of a grocer, that the consultation between the
two Judges was unnecessary. It was a fraudulent preference, and
he might have consulted his colleague as to whether it was a
fraudulent preference at law, and his direction to the jury would
be perfectly comprehensible under the circumstances, because he
186
QUEENSLAND JUSTICE OF THE PEACE.
Beoina v.
PlEEEMONT.
Lilley C.J.
said " upon the evidence already given you have no alternative
but to find the prisoner guilty," therefore he rightly assumed
it to be a question of law. But as a general rule the question will
resolve itself into a question of fact, and the jury wiU decide
from their daily experience. I think His Honor's direction to
the jury was perfectly clear ; he regarded it as a fraudulent
preference, and he might reasonably take that view ; and the
jury might reasonably take that view. By delivering all these
goods to his brother's firm, or to the Q. M. & A. Co., to one or
other of them, he gave one creditor a fraudulent preference over
his other creditors. If a fraudulent transaction, then it could
not be in the ordinary way of trade. We have not yet reached
that stage of commercial morahty in which fraud becomes part
of the ordinary way of trade. We have no alternative but to
declare that the conviction must be affirmed. The prisoner must
be brought up before the Judge in the Criminal Court to receive
sentence at the usual hour to-morrow morning.
Conviction affirmed.
Sohcitor for the prosecution : The Grown Solicitor.
Solicitors for prisoner : Roberts & Roberts.
1886.
June.
Lilley C.J.
Harding J.
Mein J.
[Full Couet.]
THE QUEEN v. AH SAM.
[2 Q.L.J. 144. Note.— 29 Vic, No. 11, s. 15 Is repealed. See now s. 317 of Criminal
Code. Compare s. 196 of Code and see Criminal Practice Rules Order II.,
rule 2, Wilson & Graham's Code, p. 392.]
Offences against the Person Act of 1865 (29 Vict., No. 11, s. 15).
Under sec. 15 of The Offences against the Person Act of 1865, where a person
is charged with " shooting at " another with intent to do grievous bodily harm,
it is not necessary, in an information charging the offence, to insert the word
" at " although it is better that the pleader should follow the language of the
Statute creating the offence.
This was a special case stated by His Honor, Mr. Justice
Cooper as follows : —
The prisoner (a Chinaman) was tried before me at Townsville on the 28th April
last.
The information contained two counts, the first of which charged that he " one
Ah Tie feloniously and imlawfully did shoot " with intent to murder the said
CRIMINAL REPORTS, 1860-1907. 187
Ah Tie ; and the second charged that he " one Ah Tie feloniously and unlawfully The Queen v.
did shoot " with intent the said Ah Tie to do some grievous bodily harm.
Just before summing up to the jury I for the first time attentively considered
the form of these counts and pointed out to the Crown Prosecutor (Mr. Power)
that I was unable to find any section of the Offences against the Persons Act,
1865 which created the offence of " shooting " with intent, and that in my
opinion there was no such crime at Common Law.
Mr. Power then asked leave to amend the information by inserting the word
" at " after the word " shoot " in both counts, which I declined to give though
I would have done so if I had been of opinion that I had the power. I then asked
the Cro^vn Prosecutor what course he invited me to take. He pressed upon me
the fact that the information was a copy of one in constant use in the Crown Law
Office at Brisbane and urged me to let the case go to the jury. I agreed to do so
on the condition that I should state a Special Case on the prisoner's behalf.
I then summed up and the jury convicted the prisoner on the second count.
I sentenced him to five years' penal servitude, respited the execution of the sentence
and reserved for the opinion of the Full Court the questions, whether the conviction
is sustainable on the information as it stands, and whether I had the power to
amend it in the way suggested. *
Pope A. Cooper.
Power, Northern Crown Prosecutor, appeared for the Crown ;
lAlley, on behalf of the prisoner.
Lilley : This is an offence created by Statute, and the exact
words of the Statute should be followed. Section 15 of the
Offences against the Person Act had the words " shoot at." The
form of the ordinary information in Archbold, p. 710, 19th ed., was
" did by drawing a trigger," * * " discharge at and against."
Stephen's Law of Criminal Procedure, art. 244, p. 156, and Archbold,
p. 64, and Bex v. Compton, 7 Car. and P., 139 ; Craven's Case,
Beg. V. Buss, p. 14, referred to.
Power was not caUed upon. He stated that the Judge was
misinformed as to the form of indictment in question being
copied from the Crown Law Office at Brisbane ; that was not the
case. It was a form in use in the office at Bowen only.
Lilley C.J. : We must take cases decided by single Judges LilleyC.J.
as guides, not absolutely as binding authorities. They relate to
many very varied Statutes ; while we may hsten with respect to
the decisions of the very learned men who have presided over the
EngHsh Courts, we must use our own reason upon our own Statutes
here. In this matter we have no doubt that the information was
sufficient. It contained two counts ; as to the first it is not
necessary to make any observations, as the prisoner was not
convicted on it. But upon the second, on which a conviction
188 QUEENSLAND JUSTICE OP THE PEACE.
The Queen v. was had, I must make one or two observations, though at no
As^Sam. length. This second count charged that he " one Ah Tie felon-
Lilley C.J. iously and unlawfully did shoot " with intent the said Ah Tie to do
some grievous bodily harm. There is a slight inversion of ex-
pression there. It would have been better if it ran, that he.
Ah Sam, did feloniously and unlawfully shoot one Ah Tie, with
intent, &c. The Enghsh of it is plain enough in the sense that I
have last stated it, that he shot Ah Tie with intent to do Ah Tie
grievous bodily harm. Now the language of the Statute is
" shoot at." If the information had followed the Statute, it
would have been, that he at one Ah Tie feloniously and unlaw-
fully did shoot, with intent. In fact the difficulty has apparently
arisen in the mind of the learned Judge from the omission of the
word " at." The charge is, " shooting with intent," instead of
" shooting at with intent." The case has been reserved by the
Judge himself ; the counsel, or soUcitor, who defended the
, prisoner did not see any difficulty. I confess none arises in my
mind. I think, if a man is charged with shooting another with
intent, that is sufficient to mean that he shot at him. At the
same time I think it is better that the pleader should follow the
language of the Statute creating the offence ; that is a sound
general rule of pleading. But if there be an allegation of an offence
by prisoner to a certain intent, although the precise — the very —
words of the Statute be not employed, it is a sufficient allegation of
the offence against the prisoner. It is a rule as old as — older than
— Coke. He gave perhaps the aptest expression to it. " Pleading
is the language of the law." But that language is not necessarily
ipsissima verba of the Statute creating an offence. If the informa-
tion be in English, and contain the precise allegation of the offence
of which the prisoner is to be tried, that is sufficient ; and this
information seems to have contained that precise allegation of- the
offence on which the prisoner was tried. I think the conviction
should be confirmed.
Harding J. Harding and Mein JJ. concurred.
Mein J.
SoHcitor for Crown : The Crown Solicitor, Brisbane.
SoUcitor for prisoner : Bernays, agent for E. A. Milford, Cairns.
CKIMINAL EEPOETS, 1860—1907.
189,
[Full Coubt.]
REGINA V. HINCKLEY.
[2 Q.L.J. 182. — Note. — Sec. 48 of Offences Against the Person Act Is repealed.
See now ss. 214, 215 of Criminal Code. See R. v. Camm, 1 Q.L.J. 136, ante
p. 138.]
The prisoner was indicted under s. 48 of the Offences Against
the Person Act of 1865, and tried before The Chief Justice and a
jury at the November Criminal Sittings at Brisbane.
On the question of age, a married sister's evidence was the
only available evidence of the date of the child's birth. She
deposed to that event occurring either the 12th or the 20th of
September, 1879 ; and that she was at home when her httle sister
was born.
Lilley, for the defence, raised the point that this was insufficient
evidence ; and cited the case of Rex v. Wedge, 5 C. & P., 298 ;
Archbold's Criminal Pleading and Evidence, 20th ed., 815.
Lilley C.J. : If it had been a question of a day or so, as in
that case, I should require something more ; but there is evidence
here to go to the jury, as to the age of the child. There are
three years to spare here. The sister does not swear to the day,
but she says she was in the house at the time of her sister's birth.
It is a matter for the jury.
SoUcitor for prosecution : The Crown Solicitor.
SoUcitors for prisoner : Chambers, Bruce, and McNab.
1886.
November.
[Full Court.]
REG. V. KOGHIE (a Malay).
[2 Q.L.J. 187. — Kote. — Sec. 49 ol Criminal Practice Act of 1865 is repealed. See
now ss. 668, 669, and 670 of Criminal Code.]
Practice — Oaths Act Amendment Act of 1884, s. 2.
A Mahommedan witness said he would be sworn on the Koran, a copy of which
could not be obtained, and a form of affirmation was administered instead.
Held, that the witness's evidence was not receivable upon such affirmation,
but only on the oath upon the Koran.
Special case stated by the Judge of the Northern District
Court, under s. 49 of The Criminal Practice Act of 1865, as follows :
1887.
February.
190 QUEENSLAND JUSTICE OF THE PEACE.
Bbq. u. KoGHiB The prisoner was tried before me at the Criminal Sittings of the Northern District
Court holden at Maokay on the 1st day of December, 1886, on a charge of unlaw-
fully wounding one Saradim, a Mahommedan.
The prisoner was undefended and did not understand English.
Charles de Harte, who had had considerable experience as interpreter in courts
in Java, and who is a cultivated and intelligent man, was sworn as interpreter.
Upon Saradim getting into the witness box, he was asked by the interpreter
how he would be sworn and he replied " On the Koran."
I directed the proper officer to swear the witness on the Koran.
The Registrar then informed me that there was no Koran in Court, and after
inquiry I ascertained that none could be procured.
The interpreter informed me there was a form of affirmation which was some-
times used by Mahommedans in lieu of the oath on the Koran, but that such affirma-
tion was not as binding as the oath, it not being considered as solemn a proceeding
by the Mahommedans.
Upon this I intimated to the Crown Prosecutor that I could not receive the
evidence of Saradim unless under seal of an oath on the Koran.
The Crown Prosecutor thereupon pressed me to allow the witness to affirm
and submitted that section 2 of The Oaths Act Amendm.Ritt Act of 1884 provided
for this position as the words " the nature of an oath " therein must be read as
" the nature of an oath on the Bible."
I was informed that in the Police Court evidence by Mahommedan witnesses
was invariably received upon affirmation, and also that without the evidence of
Saradim the Crown would be unable to proceed, and that an adjournment would be
inconvenient.
After hearing the Crown Prosecutor I said that in my opinion section 2 did not
apply as the witness neither objected to take an oath nor was incapable of compre-
hending the nature of an oath, nor was I satisfied that an oath would have no
binding effect on his conscience within the meaning of that section.
Upon the whole, however, having in view the practise of the Police Court, I
deemed it advisable to get an authoritative exposition of the law and accordingly
admitted the evidence upon affirmation and reserved the point for the considera-
tion of the Full Court.
The prisoner was convicted and sentenced to 12 months' imprisonment with
hard labour.
I respited execution of the judgment and committed the prisoner to prison by
virtue of section 48 of The Criminal Practice Act of 1865.
The questions for the consideration of the Full Court are —
1. Was the evidence of Saradim receivable otherwise than upon oath on the
Koran ?
2. What order does the Full Court see fit to make ?
A. B. Noel,
Judge N.D. Court.
Southport, Jan. 18, 1887.
Power appeared for the Crown. Prisoner was not represented.
CEIMINAL REPORTS, 1860-1907. 191
LiLLEY C.J. : Here the man said that he would be sworn on ^^°- «• Koohib.
the Koran. That was a binding oath on his conscience ; it Lilley C.J.
as obhgatory on him. Evidence was admitted against the
prisoner which ought not to have been admitted ; and it was the
only evidence against him. It is clear the prosecutor ought
to have been sworn on the Koran ; the oath should have been
administered to him which he declared would be binding upon
his conscience. The order, under the 49th section of the Criminal
Practice Act, will be — judgment to be avoided and the prisoner
to be discharged ; this order to be entered on the record.
Solicitor for the Crown : Gill, Crown SoUcitor, Brisbane.
[Full Court.]
SWANWICK V. MILLS.
[3 Q.L.J. 12.— Note.— 29 Vic, No. 6, s. 107, is repealed. See now s. 135 of Criminal
Code to like effect.]
The Larceny Act of 1865 (29 Vict., No. 6), s. 107. 1887.
April.
An advertisement appeared in The Telegraph newspaper, of which the appellant
was the printer, in these words : — " Lost, from 46 Charlotte Street, black and Lilley G.J.
tan terrier pup. Finder handsomely rewarded ; no questions asked," contrary to Mein J
the provisions of s. 107 of 29 Vic, No. 6.
HM, that the words " Lost a black and tan terrier pup " amounted to prima
facie evidence against the appellant that a dog had been lost.
Hdd also, that an action will lie against both the printer and publisher of an
advertisement, within the meaning of the said section, and although the printer
and the publisher be one and the same person, he commits two separate offences
by printing and publishing such an advertisement.
This was an action tried before The Hon. The Chief Justice
at the March Civil Sittings in Brisbane ; and was brought by
plaintiff against defendant as the printer of The Telegraph news-
paper, under the provisions of the Larceny Act of 1865, s. 107,
for printing in the issue of that paper on August 6th, 1886, the
following advertisement : —
"Lost, from 46 Charlotte Street, black and tan terrier pup.
Finder handsomely rewarded ; no questions asked." |a^
On the hearing, The Chief Justice had directed a verdict for
plaintiff ; and judgment for £50 and costs had been entered
accordingly.
His Honor held that proof of actual loss or steaHng of the dog
was not necessary on the part of the plaintiff.
192
QUEENSLAND JUSTICE OF, THE PEACE.
swanwigk v.
Mills.
Harding J.
Power, Byrnes with him, on behalf of the appellant, the defend-
ant below, now moved for a judgment of non-suit ; that the
judgment for plaintiff for £50 be set aside with costs ; or that
defendant might be at liberty to plead the judgment recovered in a
previous action against him as publisher of The Telegraph. He
submitted that there was no offence under s. 107 of the Larceny
Act, which is a penal clause, unless there was proof of loss or
stealing of the property. If there was, it was not framed to catch,
both printer and publisher for one offence.
Harding J. referred to Cripps v. Burden, 2 Cowp., 640.
Byrnes followed. The section compelled the construction
that there must be evidence of a losing or steahng ; the advertise-
ment must be in respect of property lost or stolen. The pup
may have been lost or not ; The Telegraph did not, by admitting
it and pubUshing it in their columns, teU the world at large that
that advertisement was true.
Lilley, King with him, for respondent, the plaintiff below, were
not called upon.
Harding J., in delivering judgment, said : This is an appeal
from a judgment in an action tried by His Honor The Chief
Justice, the plaintiff being F. ff. Swanwick, and the defendant
C. Mills. In that action the plaintiff stated that on the 6th of
August, 1886, a certain advertisement in these words,
"Lost, from 46 Charlotte Street, black and tan terrier pup.
Finder handsomely rewarded; no questions asked,"
appeared in The Telegraph, of which the defendant was printer.
His Honor gave judgment for the plaintiff. The action was
brought under s. 107 of the Larceny Act, which enacts that: —
"Whosoever shall publicly advertise a reward for the return
of any property whatsoever which shall have been stolen or lost,
and shall in such advertisement use any words purporting that
no questions wiU be asked, or shall make use of any words in any
public advertisement purporting that a reward will be given
or paid for any property which shall have been stolen or lost,
without seizing or making any inquiry after the person producing
such property, or shall promise or offer in any such public
advertisement to return to any pawnbroker or other person
who may have bought or advanced money by way of loan upon
any property stolen or lost the money so paid or advanced,
or any other sum of money or reward for the return of such
property, or shall print or publish any such advertisement,
shall forfeit the sum of £50 for every such offence to any person
who will sue for the same by action of debt, to be recovered with
full costs of suit."
CRIMINAL REPORTS, 1860-1907. 19^
His Honor held that it was unnecessary to prove, in order to ^MiLtf "
support the claim, that a dog had been lost or stolen. Whether or
no it was necessary to construe the statute to that extent, I do not
consider it was necessary in order to support the present action.
Although possibly and very probably His Honor's ruling was
correct, my decision turns upon these circumstances : — In proof
of the plaintifE's case the advertisement was put in, which states
as foUows, — Lost, * * * black and tan terrier pup. That
having been put in as published by the defendant amounts in
my mind to prima facie evidence against defendant in the nature
of an admission by him that such a dog had been lost, and at all
events supported the action until the contrary was proved,
In other words, the onus of proof was shifted from the plaintiff
to the defendant, and it lay upon the defendant to prove that such
a dog had not been lost. His Honor accordingly held that a dog
had been lost ; and in my opinion that was sufficient to support
the action.
Then it has also been contended by the defendant that an action
had been brought on the same advertisement by the same plaintiff
for a penalty under the same section in respect of the publica-
tion of this advertisement. The defendant says, in answer to
that, we have already suffered judgment against us for the
pubhcation ; you cannot now sue us for the printing. That
depends on the construction of the latter part of the section. I
have read " or shall print or publish : " — in order to support the
defendant's contention that " or " must be changed to- the word
" and," and the section must read " print and publish." I think
that " or " makes the section disjunctive ; the words " print or
publish " mean two different functions, and that whether the
paper is printed and pubhshed by the same person, or printed
by one and pubhshed by another, makes no difference. The
man who prints it, whether he be the same or not as the pubhsher,
is forbidden to print the advertisement ; and the man who pub-
lishes, whether he is one and the same or not as the printer,
commits a separate offence in pubhshing it. I consider that the
first is no bar to the second. On the whole, I think the judgment
must be supported with the usual result, that defendant must
pay costs.
Mein J. : I am also of opinion that this appeal should be Mein J.
refused with costs. It appears to me that the last portion of the
section was framed in the interests of pubHc morahty ; and that
any person, who either prints or pubUshes an advertisement
194 QUEENSLAND JUSTICE OP THE PEACE.
SwANwicK V. professing to offer a reward for stolen property, with the condition
' attached that no questions will be asked, should be Uable to the
Mein J. penalty imposed with costs. Printing and publishing are not
contemporaneous acts. First printing takes place ; then publish-
ing, after the lapse of an interval of time. As pointed out by
The Chief Justice and conceded by counsel for the appellant,
printer and publisher are not one and the same person ; and it
was conceded that, where not identical, each would be liable
to a separate penalty. That admission, I think, puts the appellant
out of court. If the law says a man shall not do a certain thing,
and, when he does, shall be liable to a penalty, and that man
goes for and does an additional thing, which is forbidden, he
becomes liable to a separate penalty. If, after printing, he goes
on and pubhshes, he is liable to the full penalty under the statute.
On that I think the appellant fails. On the first point, it is said
that the onus is thrown on the plaintiff of showing that the article
advertised was in fact lost or stolen. In this case the appellant
has printed a pubhc advertisement in which it is stated as a fact
that a certain dog has been lost, and that a reward will be given
for its return, and " no questions asked." If we were to hold
that it was necessary for the person who sues for the penalty
in all such cases to prove the fact which has been admitted by
the advertiser, we would in most instances make this Act a dead
letter. The object of the Legislature is that a person who makes
admissions is estopped from denying the fact in an action of this
sort. It is a prima facie admission on his part of the statement
made. If he had pleaded that there was no loss of an animal from
46, Charlotte Street, I am inclined to think that, if he had proved
that in evidence, plaintiff would have been out of court. But
there was no plea nor evidence of the kind in this case ; and, as in
all other cases, the appellant is estopped by his own admissions.
I think he has failed in his appeal.
Lilley C.J. LiLLEY C.J. said : It is hardly necessary perhaps for me to
deliver a judgment at any length on the matter, as I agree entirely
with the judgment that the motion must be dismissed with costs.
I adhere to my opinion that, where an advertisement of this kind
is inserted in a pubUc print, stating that an animal has been lost
or stolen, — I here differ from my brother Mein — it would be no
answer, even by way of plea, that no animal had been lost or
stolen. I think a defendant is precluded, as against an informer,
by his own statement that an animal is lost or stolen. That is my
opinion ; I consider it is an absolute estoppel. As to the remain-
CEIMINAL RBPOETS, 1860—1907. 195
der of the judgment, I feel it is perfectly clear that the poUcy of ^^mIl™ "'
the latter part of the statute is, as pointed out by my brother
Mein, to stop persons from encouraging others to publish these LUley u.J.
advertisements, armouncing that they are willing to compound a
felony. To throw upon the informer the onus of proof would be a
great and unnecessary demand, which he would generally be
unable to satisfy. There is no name of the person who, in this
instance has lost the animal. How is an informer to prove the
loss under these circumstances ? There is generally only the
advertisement — nothing but that — that an animal has been lost
or stolen, and that, if the person having it will take it to a particular
place, no questions will be asked. The statute, it seems to me,
is directed against a breach of duty — the immoraUty of printing
or pubUshing an advertisement that a person is wilUng to com-
pound a felony. It is directed also to the repression of anything
that will prevent the discovery, conviction, and punishment of a
person who has committed a felony. I agree with my learned
brothers, except in that expression of opinion of my brother
Mein that — of course I express only my individual opinion — it
would be a defence to say the dog had not been lost or stolen.
The question is still open to an enterprising pleader who cares to
try it.
SoHcitors for appellant : Chambers, Bruce, and McNab.
SoHcitor for respondent : Winter.
[Maeyboeough Ciecuit Couet.]
THE QUEEN v. HAMILTON.
[3 Q.L.J. 78.— Note.— See deflnition o! " dwelling-house " in see. 1 of Criminal Code.]
Criminal law — Arson — House — Injuries to Property Act of 1865 1888.
(29 Vict., No. 5), s. 3. mhjiprii.
A tent of canvas occupied for the time being af3 a dwelling s a house within Lilley G.J.
the meaning of the statute, 29 Vict., No. 3, s. 3.
The Queen v. Dixon, 2 Q.L.J. 81, followed.
The prisoner was tried at the Maryborough Circuit Court on 26th
April, 1888, upon an information under s. 3 of 29 Vic, No. 3, for
feloniously, unlawfully and maliciously setting fire to a dwelling-
house.
196
Thk Qceen v.
Hamilton.
LiUey C J.
QUEENSLAND JUSTICE OF THE PEACE.
Chubb Q.G., for the prosecution, opened that it would be shown
in evidence that the dwelKng-house in question was an ordinary
canvas tent, occupied and used by its owner as a dweUing, and
submitted, on the authority of The Queen v. Dixon, 2 Q.L.J. 81,
that such a structure was a house within the meaning of the
statute. Evidence having been adduced establishing these facts,
LiLLEY C.J., in summing up, directed the jury that a tent so
occupied and used, was a house, within the meaning of the section.
1888.
Jut. e.
Lilley C.J.
Harding J.
Meiii J.
[Full Court.]
REGINA V. ABRAHAM STREET, THE YOUNGER.
[3 Q.L.J. 88.— Note. — Criminal Practice Act of 1865 is repealed. See now s. 668 of
Criminal Code. As to joinder ol charges in information, see s. 568 of Criminal
Code. As to stealing as a clerk or servant, see s. 398 VI. of Criminal Code.]
Embezzlement — Proof of status as clerk — Admissibility of a proof
of debt sworn to by prisoner subsequent to date of embezzlement
— Admissibility of a power of attorney dated five months after
embezzlement.
One S., being in the employ of B. and Co., was charged with three several!
embezzlements, on 15th March, 3rd June, and 12th July. At the trial three
proofs of debt were tendered, dated lith April, 21st May, and 26th July, sworn to-
by S. as the clerk of B. and Co.
The proof of 26th July was objected to by counsel for the prisoner, but admitted.
Counsel for the prisoner tendered a power of attorney given by B. and Co.
to the prisoner, dated 16th December in the same year. This was rejected.
On the admissibility of these two documents being reserved for the consideratioa
of the Full Court,
Held, that averments made by a man at not too remote a period from the date
of the transactions impeached may be given in evidence against him, and that
the proof of debt of 26th July was therefore rightly admitted.
That the power of attorney, as being too remote, was properly rejected.
Tbat these proofs of debt constituted a chain of evidence extending over the
period within which the embezzlements were charged to have been committed
and that in the one objected to S. swore to transactions by the firm during the'
same period.
Conviction affirmed.
Case stated for the consideration of the Judges of the Supreme
Court by Mr. Justice Mein, pursuant to the provisions of The
Criminal Practice Act of 1865, as follows : —
CEIMINA.L REPORTS, 1860—1907. 197
Abraham Stueet,
THE yOHNGEB.
The prisoner was tried before me on the 31st May and the j^^l^^f™^,
1st June, 1888, at the present Criminal Sittings of this Court
in Brisbane, on an information containing three counts, whereby
he was charged with having (1) on the 15th March, 1886, embezzled
£60 as clerk to Barron Lewis Barnett and another, (2) on the 3rd
June, 1886, embezzled £330 as clerk to the same persons, and
(3) on the 12th July, 1886, embezzled £120 as clerk to the same
persons. The jury found him guilty of the charges contained
in the first and third counts, and not guilty of the charge con-
tained in the second count of the information.
The prisoner, several years ago, entered the service of Emanuel
Barnett and Barron Lewis Barnett, who traded as merchants
in Brisbane under the firm of E. Barnett & Co., and remained
continuously in their service up to and throughout the year 1886.
During the whole of that year he' held the position of confidential
clerk to the firm, and received for his services a salary of £300 per
annum, paid by monthly instalments. Mr. Emanuel Barnett
lived in England, and Mr. B. L. Barnett, the partner resident
here, had the management and control of the business in Queens-
land, and the prisoner was " under his orders." The prisoner's
duties, prior to May, 1886, were to keep the cash-book, to attend
to all the banking accounts, to receive accounts when paid, to
superintend all the clerical work in the counting-house, and to
exercise a general -superintendence and management over the
secured customers of the firm. The cash-box was kept by
Mr. B. L. Barnett up to May, 1886. WhUst it was so kept it
was the duty of the prisoner, when' he received any cash or
cheque on behalf of the firm, to at once credit in the cash-book
the customer who paid the cash or cheque with the amount so
paid. It was then his duty to hand over to Mr. B. L. Barnett
the identical cash or cheque so paid and credited. In May,
1886, Mr. B. L. Barnett ceased to keep the cash-box, and the
prisoner was entrusted with the duty of keeping it and the firm's
cash. Thereafter it was the prisoner's duty, after crediting
customers in the cash-book with the cash or cheques paid by them,
to pay all cheques and large amounts of cash to the credit of the
firm of E. Barnett & Co. with their bankers.
The prisoner, on the 15th March, 1886, received on behalf of
E. Barnett & Co. from one of their secured customers a cheque
for £60, and, contrary to his duty, cashed the cheque at the bank
on which it was drawn, and appropriated the proceeds to his own
Tise, without either crediting the customer or debiting himself
with the amount in the cash-book, or in any of the other books
of the firm.
On the 12th July, 1886, the prisoner received from the same
secured customer, on behalf of E. Barnett & Co., another cheque
for £120, and, contrary to his duty, caused such cheque to be
cashed at the bank on which it was drawn, and appropriated the
proceeds to his own use, without either crediting the customer
or debiting himself with the amount in the cash-book, or in any
of the other books of the firm.
198 QUEiENSLAND JUSTICE OF THE PEACE
Beginai). It is unnecessary to refer to the moneys mentioned in the
Abraham Stkeet, gegon^ count of the information, as the prisoner, as abeady
THKTO0NGEE. gj.g^(.g^^ ^^^ acqulttcd of the charge therein contained.
The prisoner's main defence to the whole information was
that he was not a clerk within the meaning of the statute, but
merely the financial agent of E. Barnett & Co.
There was no written agreement between the prisoner and
his employers, and the evidence above stated as to his position
and duties was given by Mr. B. L. Barnett.
During the trial, Mr. Chubb, Q.C., who prosecuted on behalf
of the Crown, tendered as evidence in support of the information :
— (1) a proof of debt in the insolvent estate of J. M'Alpine,
sworn and made by the prisoner on the 21st May, 1886, on behalf
of E. Barnett & Co. ; (2) a proof of debt in the insolvent estate
of A. J. Bing, sworn and made by the prisoner on the 14th April,
1886, on behalf of E. Barnett & Co. ; and (3) a preliminary proof
of debt in proceedings for liquidation by arrangement or com-
position instituted by G. Chadwick the younger, sworn and made
by the prisoner on the 26th July, 1886, on behalf of E. Barnett
& Co. In each of these proofs of debt the prisoner deposed
that he was a " clerk to E. Barnett & Co." The last- mentioned
proof related to goods that had been supplied by E. Barnett &
Co. to the debtor between 5th May and 26th June, 1886, and to
promissory notes that had been made by the debtor in favour
of E. Barnett & Co. between the 19th April, 1886, and the 14th
May, 1886. The prisoner's counsel, Mr. Power, objected to the
admission of each of the proofs. I overruled his objection,
and admitted the three proofs in evidence. The proofs so admitted
accompany this case.
Mr. Power tendered, as evidence on behaK of the prisoner,
a power of attorney made by Mr. B. L. Barnett on the 16th
December, 1886, in favour of his brother, Mr. E. M. Barnett,
and the prisoner. By such power of attorney Mr. B. L. Barnett
substituted, with certain exceptions, powers that by an. earlier
deed poll had been conferred on him by his partner, Mr. Emanuel
Barnett, and conferred like powers, on his own behalf, on the
same donees. The effect of the power of attorney was to repose
on the prisoner and Mr. E. M. Barnett jointly, and, in the event of
of the absence, illness, or incapacity of either of them, but so long
only as such absence, iUness, or incapacity continued, in the other
solely, with specified reservations, the management and control
" of the business of E. Barnett & Co., during the absence from
Queensland of Mr. B. L. Barnett. The power of attorney accom-
panies this case. I refused to admit it in evidence, on the ground
that it was irrelevant and could not afiect the status of the
-.prisoner on the dates mentioned in the information.
In my charge to the jury I told them not to regard the
proofs of debt that were admitted by me as evidence of the
character or capacity in which the prisoner was employed by
E. Barnett & Co., but to treat them simply as evidence of the
fact that the prisoner was in that firm's employment on the dates
when the proofs were respectively made by the prisoner.
CRIMINAL REPOETS, 1860-1907. 199
On the conclusion of my charge to the jury, the prisoner's Beqina v.
counsel requested me to reserve the following questions of law ^'^''^ham Street,
. ,, ^ -J i- St J.T ■ ri 1. THE YOnNQER.
tor the consideration of this Court : —
(1) Was the proof of debt, dated the 26th July, 1886, properly
received in evidence ?
(2) Was the power of attorney of the 16th December, 1886,
properly rejected ?
I did not pass judgment on the prisoner, but postponed such
judgment until the questions reserved had been decided by this
Court, and I committed the prisoner to prison, and he now is in
prison.
Charles' Stttaet Mbin, J.
2nd June, 1888.
Power and lAlley appeared for the prisoner ; Chubb Q.G. and
Beat for the Crown.
Power : The issue was — ^Was the prisoner a clerk on the date
of the alleged embezzlement ? Was he a clerk on 12th July ?
There should be no presumption in a criminal case. There was
no objection to the two first proofs of debt that were put in evi-
dence ; but the third was remote, and the conviction therefore
bad. R. V. Gibson, 18 Q.B.D. 87, R. v. Fairie, 8 E. & B. 486.
LiLLEY C.J. : There is a chain of proofs beginning in April, one
in May, and one in July. The two first lead up to the third ;
as Unks in the chain of proofs none of them is remote. We are
unanimous against you on that point.
Power : As to the power of attorney of December, 1886, the
Crown pressed their objection to its admission, and His Honour
rejected it. If the document of 26th July was admissible, that
one of December should also have been. There was some evi-
dence that prisoner was probably a financial agent, with more
power than a clerk. It is no doubt a question of degree of
remoteness.
LiLLEY C.J. : We do not think the power of attorney was
admissible ; or that it would have served you, if admitted.
lAlley followed. The Crown asserted that on 15th March
prisoner was a clerk, again on 3rd June, and again on 12th July.
By way of showing that he was a clerk on 12th July, they put in
a proof of debt sworn some days after that date in which h©
admitted that he was a clerk. There was nothing in that proof
to show that he knew anything of previous transactions ; there
was nothing in The Insolvency Act requiring him to know th©
business of the firm.
200 QUEENSLAND JUSTICE OF THE PEACE.
Eegina v. Mbin J. : Then how does a man swear that another is indebted
^;rZ';ar'' to the erm of which he is an employ^ ?
Lilley : If he could not do so, no more could an executor swear
to the business of a testator who had carried on that business
himself.
Lilley C.J. : The executor would make his affidavit in proper
form, no doubt. The Insolvency Act does not allow a man to
swear a proof of debt as of his own knowledge, when he actually
does not know, but is merely informed. If prisoner swore falsely
in this case, the affidavit may be bad under the Insolvency Act ;
still it is admissible evidence per se in this trial.
Chubb Q.C. and Real were not called upon.
Lilley C.J. LiLLEY C.J. : The two points reserved for the prisoner have
been put strongly by Mr. Power and Mr. Lilley. In this ease,
1st, was the proof of debt dated 26th July, 1886, properly received
in evidence ? That one only is assailed. In order to see whether
it was properly received in evidence, there are two Hues of circum-
stances, either of which, to my mind, would determine the ad-
missibility of the document. The first is that between 15th
April and 26th July there were a series of proofs, so to speak, in
which the defendant swore that he was a clerk to Barnett & Co.
Now the embezzlements were charged as having taken place on
15th March, 3rd June, and 12th July. The only one of those
dates not within the period covered by these proofs, is that of
15th March, and that is before. With respect to the others, we
may presume that defendant had continued to be a clerk during
that period ; and with respect to 15th March, we may presume
that he was a clerk before, and continued to be a clerk after that
date, since he swears that transactions of the firm in December,
1885, were within his own knowledge. The proof of 14th April
contains the statement that the facts were within his own know-
ledge, and, notwithstanding that that averment is not in the proof
of 26th July, yet, when a man swears to another's affairs, we may
take it that they are within his own knowledge. We must take
it that between these extreme dates of dishonest transactions,
the defendant may be reasonably believed on his own oath to
have been a clerk. I think that averments made by a man at
not too remote a period from the date of the transactions im-
peached may be given in evidence against him. The question
of remoteness is a subject for the judge, and he must consider it.
I must take it that no such objection was raised here, and that,
CRIMINAL REPOETS, 1860-1907. 201
if it had been, my learned brother should have overruled it, . Reqina v.
, '' Abraham Street,
because here the proofs are made at periods not too remote from thk younoer.
the transactions which took place before 15th March, or just .. ~ ,
immediately before 12th July. On the ground that the extreme
dates were not too remote either way, I must hold that the
evidence was admissible.
From every point of view, there was a chain of circumstances
deposed to by prisoner in these proofs which would strengthen
the presumption of continuance, that is, that he was a clerk
during the whole of the period sworn to in these proofs. In the
first of them, that of 21st May, the prisoner Street swore that
M' Alpine was indebted to Barnett & Co. in £26 odd, and that
Barnett & Co. held securities for that, one dated so far back as
1st December, 1885, and the other being after March, 1886, and
that the debt was incurred, and for the considerations above
stated, within his own knowledge. Then there is a subsequent
proof of 14th April, in which he goes further back still, and swears
in 1886 that a man named Bing was indebted to Barnett & Co.,
to his own knowledge, so far back as 1st October, 1885. Then
comes the proof of 26th July, on which the question of admis-
sibility has been alone raised, and in which he says that he is a
clerk as in the other proofs, and that George Chadwick is indebted
to Barnett & Co. in £317. I think that, when a man swears to
that, he swears from knowledge ; it is not a proof from informa-
tion and belief, but by one who knows. He may do so as one
engaged in the business from day to day. In that, he goes back as
far as 19th April, setting out various securities, and the particulars
of debts. That proof is admissible on two grounds, first, that it
is not too remote from the other transactions, and second, that
he deposes that he is a clerk. That status may most reasonably
be presumed to have continued from 15th March to 12th July.
Then this proof was rightly admitted. Founded on the previous
proofs, it is the concluding link in a chain, of which the two pre-
vious proofs are links, and concludes the previous presumption,
which the jury may take for a fact, that he was a clerk during the
whole period of the information, before and after those three
dates, when he is alleged to have appropriated his master's money.
My learned brothers agree with me that the convictions must be
upheld.
HARDi2fG J. : The prisoner was indicted for embezzlement, Harding J.
and, in cases of this crime, the law allows three separate charges
to be proceeded upon one information, so that there were at this
202
QUEENSLAND JUSTICE OF THE PEACE.
Eegina v.
Aebahaiu Stbket,
tbe yobkgeb.
Harding J.
time before the jury the charge of embezzlement on 15th March,
3rd June, and 12th July. As to each of these charges the evi-
dence must be sufficient to convict the prisoner. The charge
being for embezzlement, one of the issues must be, and was,
whether at the time of the offences charged to have been com-
mitted, the defendant vi^as a clerk to the owner of the property
said to have been embezzled ? This was in issue. Secondly, the
prisoner raised the issue, that, if it was proved at any particular
moment that the relation of clerkship existed, yet directly after-
wards it had ceased to go on. In the course of the trial two docu-
ments were tendered, one of 21st May, the other dated 14th April,
Now, these two documents were clearly admissible, without
anything as to their contents, as to the embezzlements charged
to have taken place on 3rd June, and 12th July. They were
admissions of his status at the time just before those embezzle-
ments. These were put in and contained on the face of them
admissions by the prisoner, on the dates they were sworn, that
he was a clerk — that that relation existed between him a^d the
parties from whom the money was embezzled. Now, the first
one, that of 21st May, being put in, it constituted the relationship,
and from that a presumption arose that that relationship con-
tinued, until it was rebutted, and it at once threw the onus on
the prisoner of rebutting that presumption. Then, the one of
14th April was put in, and it shows an admission of the relation-
ship then, and raises a presumption that it existed and continued
to exist. That one of 14th April strengthens the one of 21st May.
So far, then, we have a relationship proved to exist on 21st May
and 14th April. Another document is then tendered, dated 26th
July. But it must be remembered that the issue was that this
relationship was presumed to continue until shown to have been
put an end to. It is a contention in issue that he was a clerk,
and, this being put in, it goes to strengthen the presumption that
the relationship continued right through. On that ground alone
I think it was receivable. That would go only as to the acts
charged on 3rd June and 12th July. So far as that goes, I do not
think there can be the least possible doubt as to its admissibiUty,
nor am I going to throw any doubt on it, because they were rightly
admitted. In these documents, the deponent acknowledged
himself at the time to be a clerk. He speaks of his own
knowledge, because a man making an affidavit always
speaks of his own knowledge, unless he qualifies it by
showing the sources of his information. He omits here
OEIMINAL EEPOETS, 1860—1907. 203
to give any sources of information, and does it at his . Begina v.
., . , 1 , n ,. Abraham Street,
peril, ana it would be for a jury, on an indictment for the YonNOER.
perjury, to say whether he did so wilfully. But here, speaking ^ ^^ j
without quaHfication, he asserts that he knows the facts stated
therein. If he did, these dates run back behind 15th March, and
running back as they did, it was a question for the jury to say :
Do we beheve what this man then swore on his oath ; that he
knew in connection with Barnett's business these facts stated ?
If not, we must believe that he was intentionally swearing falsely.
That was a question for the jury, whether or not they gave
credence to what was laid before them. If they did, why, from
that, though not direct evidence, it was a circumstance from
which they were entitled to infer that he was a clerk during that
period. So that I think the documents were properly before the
jury as to each charge of embezzlement then being tried. Then
it was said that a document tendered by Mr. Power, on behalf of
the prisoner, was improperly rejected. This document was dated
16th December, 1886. As compared with the dates of the
embezzlements charged, I think that document was properly
rejected. I need not give further grounds for my judgment.
Mein J. : I concur. Mein J.
LiLLEY C.J. : Our answer, then, to the first question is. Yes ; LiUey C.J.
and to the second. Yes. The convictions are affirmed, and the
prisoner is ordered to be brought up for sentence before our brother
Mein on Wednesday morning.
Solicitors for prisoner : Chambers, Bruce & McNah.
Solicitor for prosecution : Crown Solicitor.
[ToowooMBA Circuit Coitrt, Criminal.]
REGINA V. KNACK.
[3 Q.Ii.J. 101. — Note. — See sec. 572 of Criminal Code as to amendment of Indict-
ment.]
Information for infanticide — Two counts — Information quashed — 1888.
Second information — Sex of child unspecified — Information nth July,
quashed — Third information — Amendment of amended inform- Harding J.
ation.
Chubb Q.C., for Crown, presented an information against Ellen
204 QUEENSLAND JUSTICE OF THE PEACE.
Heoika u. Knack. Knack, containing two counts, (1) that she had murdered a male
child, (2) that she had murdered a female child.
Macnaughton, for prisoner, objected to double count.
Harding J. ordered the information to be quashed. Archbold,
19th Ed., 49.
Chubb Q.C. then presented an information against the prisoner
for the murder of a child, name unknown.
Macnaughton objected to the information, on the ground that
the sex of the child should be stated ; and, if that objection be
overruled, on the ground that there should be some allegation in
the information that the sex was unknown to the Prosecutor.
Hakding J. intimated that he did not consider mention of the
sex absolutely necessary, if unknown.
The information was quashed on Chubb consenting to Mac-
naughton's application.
Chubb Q.C. then presented an information for the murder of a
female child, name unknown.
Macnaughton objected on the ground that the Court had no
power to amend an amendment. Archbold, 19th Ed., 225.
This objection being overruled, the trial proceeded in the
usual course, and prisoner was acquitted.
<
Solicitor for prisoner : Murray, Toowoomba.
[Brisbane Criminal Sittings.]
REGINA V. ROCHE.
[3 Q.L.J. 139.— Note.— See sec. 613 ol Criminal Code, and see B. v. Kovalky, 6
Q.L.J. 219, post.]
1889. Practice — Plea — Allegation of insanity — Jury sworn to try the
a7th, asth May. same — Right to begin — Insanity Act, s. 48.
Harding J. A prisoner committed for sentence from Inferior Court, allowed to withdraw
plea of guilty, on his counsel alleging insanity, and on the plea of not guilty being
entered a jury sworn to state whether prisoner understood proceedings of the Court.
On the finding of the jury that the prisoner did comprehend the proceedings
and was sane, it was ordere'd that the plea of not guilty be withdrawn and that
a plea of guilty be entered instead.
Hdd, the right to begin is with the prisoner, on whom the onus to prove insanity
lies.
Segiiia v. Davies, 3 C. and Kir., 329, not followed.
Regina v. Turton, 6 Cox C.C. 385, followed.
CRIMINAL REPOETS, 1860—1907. 205
Information against John Roche for larceny. The prisoner Kbginaj^Boohb.
was committed for sentence from the Police Court.
Wilson, for prisoner, asked to have the plea in the inferior
Court withdrawn and made a statement, alleging insanity on the
part of the prisoner at the time of arraignment.
Mansfield, for the Crown, submitted that unless it could be
shown that the prisoner was insane at the Police Court,
when he made his plea of guilty, it would be of no avail.
Wilson : If it is shown that a prisoner is of unsound mind, all
proceedings can be stayed at any time.
Harding J. : Well, then, he goes to prison for ever ?
Wilson : No, he is confined during the Queen's pleasure.
Mansfield then tendered the depositions, and the plea of guilty
entered in the Police Court.
Wilson : The difficulty in this matter arises out of the fact
that such cases are not provided for in the new Act. If at any
time it comes to the cognizance of the Court that the prisoner is
insane, aU. proceedings must be stayed.
Harding J. : It will be for the jury to say whether he was
insane at the PoHce Court, and whether he is insane now.
Wilson : Such a proceeding is not provided for in The Insanity
Act of 1884, which repealed the old Act of George III, and it is a
question now, whether a jury can be summoned to try the question.
The difficulty arises in this case from the committal of the prisoner
for sentence.
Harding J. : There is no difficulty about that. I cause the
prisoner to be re-arraigned. The man has pleaded guilty, which
is simple enough, and you assure me that you have evidence of
the man's insanity.
Wilson : And I submit that the proceedings must be stayed.
Harding J. : The proper course wiU be for Mr. Wilson to ask
for the prisoner's plea to be withdrawn. If I accede to that, I
will have a jury empanelled to try the question, whether or not
the prisoner can understand the proceedings and plead to the
information. This is the course I took at Maryborough, in
Regina v. Jansen, about 1880, before the new Insanity Act came
into force, and I do not see how that Act affects what I did on
that occasion. The only difference is, that the old Insanity Act
was in force then, and the present Act operates now. The real
206 QUEENSLAND JUSTICE OF THE PEACE.
Begina v. Eoche. question is whether the prisoner is in a state of mind to under-
stand what we are doing. If he is not, we must wait till he is,
subject to Her Majesty's pleasure.
Wilson then asked that the prisoner's plea of guilty should he
withdrawn, and on the concurrence of the Crown, the request was
acceded to. The prisoner was then remanded till the next day, in
order to allow the Crown to inquire into his mental condition.
On the following day the prisoner was arraigned and pleaded not
guilty. A jury was then empanelled, the following oath (Arch-
bold, 19th Ed., p. 153) being administered :
You shall well and truly try whether John Roche, the prisoner
at the Bar, who stands charged with felony was able, competent,
and of sufiBcient intellect to understand and comprehend the
proceedings on the trial when he pleaded to the information
after referred to, and whether he is now able, competent, and of
suflBcient intellect to understand and comprehend the proceedings
on the trial to be now had and taken on the information preferred
against him for the said felony, and upon which he hath been
now arraigned and pleaded not guilty, so as to make a proper
defence thereto. So help you God.
And the following oath was administered to the witnesses : —
The evidence which you shall give to the Court and jury upon
this inquiry, shall be the truth, the whole truth, and nothing but
the truth. So help you God.
The usual proclamation as to witnesses, except one medical
witness on each side, was then made.
Haeding J. then called on Wilson to begin.
Wilson : I have no objection to begin, but there is a different
practice that was followed in Eegina v. Dames (3 C. & Kir., 329).
Habding J. : That case has not been followed. 1 Russell on
Crimes, 135-6 ; Eegina v. Turton (6 Cox C.C, 385). A man is
presumed to be sane until the contrary is proved, and the burden
of proof falls on the prisoner now, though it may shift as the case
goes on.
Wilson, in opening, referred to 1 Russell on Crimes 114 ; Begina
V. Oxford, 9 C. & P., 546 ; and as to admissions or statements,
Eegina v. Pearce, 9 C. & P. 670. Medical and other evidence
was then called, and counsel addressed the jury.
The jury found that the prisoner was able to comprehend the
proceedings on the trial when he pleaded to the information, and
(2) that he was now capable of understanding the proceedings.
CRIMINAL REPORTS, 1860—1907. 207
Mansfield thereupon applied that the plea; of not guilty be Begina v. Boche.
struck out, and the plea of guilty entered.
Harding J. : Be it so.
Mansfield prays judgment.
Wilson did not desire to press the question of aanity any further,
but asked for mercy on the ground of previous good character.
The prisoner . was then sentenced.
SoUcitors for prisoner : Chambers, Bruce, and McNab.
Solicitor for Crown : J. Howard Gill.
[Full Court.]
REG. V. RODY HOGAN.
[3 Q.L.J. 143.— Note.— See R. v. Kuruwaru, 10 Q.L.J. 139, post ; R. v. Corbett,
1903 S.R.Q. 246, post ; R. v. Warton, 1905 S.R.Q. 167, post. As to improper
admission of evidence for defence, see now s. 671 of Criminal Code.]
Dying declaration — Authenticity of, without declarant's signature — 1889.
Absence of prisoner while declaration was being made. June.
A dying declaration is admissible if its terms can be proved by a witness who
was present when it was made, and such declaration does not require to be signed
or authenticated in any other way.
Special Case stated by Mr. Justice Cooper : —
Judge's Chambers,
Supreme Court, Bowen,
May 23rd, 1889.
Reg. v. Rody Hogan.
The above-named prisoner was tried before me at Towns-
ville, on the 2nd and 3rd of May instant, on the charge of having
murdered a man named William GuUfoyle. A material part of
the evidence against Hogan, was Guilfoyle's dying declaration,
which had been taken down in writing by Mr. ZiMman, the Police
Magistrate of Herberton. It began with the words, " I, William
Guilfoyle, believing that I am in danger of impending death, and
that I have no hope of recovery, do solemnly and sincerely
declare," and proceeded to relate the circumstances of the crime.
At the end were inscribed these words and figures, " Declared
before me this fourth day of November, 1888, at Herberton, A. H.
Zillman, Police Magistrate." The document was not signed or
otherwise marked in any way by the declarant.
William David Bowkett, a duly qualified medical practitioner
of Herberton, was examined, and in the course of his evidence
208 QUEENSLAND JUSTICE OF THE PEACE.
Beg. !■. EoDTT said, " I was present on the 4th November, when GuiKoyle made
^^^- a dying declaration. Mr. Zillman, Police Magistrate, and Mr.
Ringrose, barrister, were there at the time, and, for a portion of the
time. Constable Lanigan and prisoner. The declaration was taken
down in writing. It was read over to Guilfoyle. While Guilfoyle
was making his declaration the prisoner was brought into Guil-
foyle's presence, and Guilfoyle was asked whether that was the
man, or whether that was Rody Hogan (I can't remember which),
and he said, ' Yes.' GuiKoyle was suffering a good deal of pain.
His mind was clear." The witness then looked at a document and
said, " This is the declarationi"
Mr. Macnaughton, of the bar, who defended the prisoner,
objected to its reception, on the ground that the prisoner was not
present all the time.
I overruled the objection.
The witness continued, " I had no hope of Guilfoyle's recovery
and I told him so."
The document was then tendered ; no further objection was
taken ; it was admitted and read. No further evidence was
given upon the point under consideration.
After the jury had retired, Mr. Macnaughton asked me to
reserve a case for the consideration of the Pull Court, on the
ground that the declaration made by Guilfoyle, was not signed
or authenticated on the face of it by him, and was consequently
not receivable in evidence, and ought not to have been left to the
jury. He cited Begina v. Gibson, 18 Q.B.D., 537.
The jury convicted the prisoner, and I passed sentence of
death upon him. I respited the execution of the sentence until
after the decision of the Full Court upon the point reserved
should be known.
Pope A. Coopek.
Power, for the Crown, submitted that the objection should be
overruled. This case was similar to King v. Reason cfc Nantes,
1 Str., 499.
Lilley C.J. LiLLEY C.J. : I see now why Reg. v. Gibson is mentioned here.
Under that case, now, the prisoner's counsel may wish to have
certain evidence in for the sake of his client, and afterwards should
it turn out to be inimical, the Judge would have to reject it,
because it should not have been admitted. I very much regret
that that decision has been given. We are bound by it ; and under
it we must now treat this matter, as if counsel had been present
and had objected. A prisoner now only needs the luck to get a
bit of evidence in, that the Judge should not have allowed in
against him, even if ehcited by his own counsel, and he is as if it
had been objected to by counsel and put to the jury.
The document here was not a deposition ; we can only treat
it as a dying declaration. It had to be proved by someone who
CRIMINAL EEPORTS, 1860—1907. 209
heard it taken. Here the doctor does that. There is nothing ^Hooan°"^
in the point that the prisoner was not present ; nor in the point
that it was not signed by the declarant. The terms of the declara- i ey . .
tion are clearly proved by the witness, who says he was present.
There is nothing here, as far as I can see, that might not have
been admitted. As the terms of the declaration were proved by a
witness present when it was made, I think it was clearly admissible,
and need not have been signed, or authenticated in any other
way. The man may not have been in such a condition as to have
borne to have his deposition taken. These things are usually
done in a hurry. Had it been possible, the prisoner being there,
it would have been better to have taken a deposition. The
conviction must be affirmed.
Solicitor for Crown : Gill, Crown Solicitor, for Petrie, Crown
Solicitor, Bowen.
[Full Court.]
BERNECKER v. WHITE.
[4 Q.L.J. 1.— Note.— Brands Act of 1872, s. 27, is repealed, see now s. 447 ol Criminal
Code. Brands Act Amendment Act of 1884, s. 2, Is repealed, see now s. 449
of Criminal Code.]
Brands Act of 1872, s. 27, and Brands Act Amendment Act of 1890.
1884, s. 2 — Limitation of time for information after discovery March.
of offence — Costs to the Crown. LilUy G.J.
Mein J.
B. was convicted under the above statutes of illegally branding a cow, upon
an information laid by the Inspector of Brands, more than a month after the
discovery of the branding by the owner W., but within a month of the time when
W. informed the inspector thereof.
Held, that the limitation of time in s. 2 of BruTids Act Amendment Act of 1884
relates to the discovery of the offence by the person laying the information, and
not to any person who may first make the discovery, and neglect to lay an infor-
mation.
The Crown, having appeared and succeeded on behalf of the Inspector for
Brands, are entitled to coats.
Bebneckeb had been convicted under the Brands Act of 1872,
s. 27, of illegally branding a cow, the property of White, by
putting his own unregistered brand on it. The alleged illegal
branding was said to have been in June, 1889. White informed
210 QUEENSLAND JUSTICE OF THE PEACE.
Berneckee !'. Ferry, the Inspector of Brands, and prosecuted on the 2nd
' December, 1889, and Ferry, after inspection of the cow, laid an
information on 13th December, 1889. White had heard, about
six months before 2nd December, 1889, that his cow bore defend-
ant's brand.
Rutledge, for the defendant, appealed and obtained, before
Mein J., at Chambers, a rule nisi for a quashing order against
White and the convicting justices, on the ground that the breach
of the provision of s. 27 of the Brands Act of 1872, complained of,
was discovered more than one month before the information was
laid ; the rule asked for costs against White.
Rutledge and Lilley now appeared for the appellant, and moved
the rule absolute on the same ground. White was the person
who should have laid the information. White put the law in
motion, and got the Inspector to lay the information. White
had made a discovery of the breach of the law six months before.
Referred to Metropolis Local Management Amendment Act,
25, 26 Vic, c. 102, s. 107, as an analogous Act ; and to Brutton v.
St. George's Vestry, 13 Eq., 339.
Lilley C.J. : Can there be any reasonable doubt about the
language of the section ; discovery is when a man has reasonable
ground to beHeve that an offence has been committed. Here
it is the discovery by the person who prosecutes, that is meant.
Real : The discovery by the - Inspector was on the day that
White informed him ; he went and inspected the beast, and within
a month laid the information. The rule should be discharged.
Lilley C.J. LiLLBY C.J. : This was a prosecution by the Inspector of Brands,
— a public officer charged with the administration of the Brands
Act, which is an Act of public policy, and for the protection of"
the public. One object of the statute is to prevent the commission
of felonies, and other offences against persons owning stock.
There was a public officer prosecuting, — Mr. Ferry — on the
information given him by Mr. White, who alleged that his cow
— or calf at the time probably, when the brand was put on —
had been wilfully branded by the defendant, Bernecker. Our
judgment must rest upon the interpretation which we put upon
the Brands Act Amendment Act of 1884. The prosecution origin-
ated under the 27th section of the principal Act of 1872, which
provides that, —
"if any person wilfully brand any stock of which he is not the
rightful owner, or shall wilfully cause, direct, or permit any stock
CEIMINAL REPORTS, 1860-1907. 211
of which he is not the owner, to be branded with his brand, such BiinNECKER v.
person shall on conviction for every such offence in a summary ^hite.
way, forfeit, and pay any sum not exceeding fifty pounds." Lilley C.J.
Well, as I have said, our judgment must rest on the interpreta-
tion which we put on the 2nd section of the Amending Act.
Originally the information for a breach of this statute must be
laid within six months of the commission of the offence. For some
reason or other the Legislature saw fit to alter the law, and they
enacted in this 2nd section of the Amending Act, that —
"on information for a breach of any of the provisions of the 27th
and 28th sections of the said Act, may be laid and prosecuted
in a summary way at any time within one month from the dis-
covery of such breach, anything in any law or statute to the
contrary notwithstanding."
Now, our interpretation is that discovery is made under this
section when the person who prosecutes has reasonable ground
for beUeving that an offence has been committed. The person
who prosecuted here was the Inspector of Brands, a public officer
prosecuting for a public offence, who laid the information within
one month of the time when he made the discovery, within the
m^eaning of the statute, as we interpret it. It was not until
White, the owner, informed him — Ferry — that Bernecker had
branded his cow, that he can be said to have had reasonable
ground for believing that an offence had been committed. Prob-
ably it might be extended to the time when he went to satisfy
himself, by inspection of the animal, that the double brands
were on it — first. White, the owner's brand, and then, on the
same side, Bernecker's brand. That being so, he laid his infor-
mation within the time limited by the statute. First, then,
discovery means when the person prosecuting has reasonable
grounds for beheving that an offence has been committed, and
second, the limitation is against that person and not against the
actual owner. Any other interpretation would lead to this :-—
fifty different persons may have discovered this and not prosecuted,
if they chose to wink at it and not do their duty. We would then
have to go back to the person who first discovered the offence,
and a man might go without punishment. The old limitation
is gone, and this goes back to the old rule of law with respect to
larcenies, that the ofience is not purged until the offender is
convicted or acquitted, unless he can show that the person who
laid the information discovered the offence more than a month
before. That being so, the rule must be discharged.
212 QUEENSLAND JUSTICE OF THE PEACE.
^"^ Whit^ " ^^^^ J- concurred.
Mein J.
Reed asked for costs. The Crown had appeared in the interests
of the public and succeeded, and was therefore entitled to costs,
Rutledge : Costs were asked by appellant against White.
This was a case of first impression and of pubUc importance.
The Crown ought not to get costs.
1 ey C.J. LiLLEY C.J. : My brother Mein has a strong impression that the
Crown should not have costs. I am inclined to disagree with
him. This is a public officer, and the Crown comes here to defend
his act. I think it ought to go with costs. Rule discharged with
costs.
Sohcitors for appellant : Ruthning <fc Byram.
Solicitor for respondent : Gill, Crown Solicitor.
1891.
June,
[Full Court.]
REGINA V. LUM HOOK.
[4 Q.L.J. 63.— Note.— 29 Vic, No. 13, ss. 48, 49 ; 38 Vic, No. 3, s. 7 ; and 53
Vic, No. 17, ss. 4, 11, 17, have been repealed ; 40 Vic, No. 2, s. 2, is
repealed, see now s. 669 of Criminal Code.
Crown Case Reserved — Jurisdiction — Northern Supreme Court —
29 Vic, No. 13, ss. 48-49—38 Vic, No. 3, s. 7—53 Vic,
No. 17, ss. 4, 11, 17 — 40 Vic, No. 2, s. 2 — Perjury — Judicial
proceeding — Small Debts Act (31 Vic, No. 29) — Non-amend-
ment of proceedings.
The Full Court sitting at Brisbane, is the proper tribunal for a Crown Case
Reserved by a Judge of the Northern Suprerae Court.
Section 2 of 40 Vic., No. 2 [Criminal Practice Amendment Act of 1876), is not
impliedly repealed by The Supreme Court Act of 1889.
An action had been commenced in the Small Debts Court at Cairns, against
Lum Hook and Chong Chow, trading together in partnership, for goods sold and
delivered. The plaintiff abandoned the case against Chong Chow, and without
amending the proceedings in any way, evidence was taken for the defendant,
who in the course of his evidence, committed the alleged perjury. Judgment was
given for the plaintiff against Lum Hook alone.
Held, that this was a judicial proceeding, and it was competent for the Court
to proceed in the action after the abandonment against one defendant, and that
the conviction for perjury should be sustained.
Case Rbseeved by Chubb J. :
CEIMINAL EEPOETS, 1860-1907. 213
1. The defendant Lum Hook was tried before me at the Circuit Beoina v.
Court Cairns on the second day of April 1891 on an information Lpm Hook.
for perjury.
2. The perjury was charged in the information to have been
committed in the Court of Petty Sessions Cairns in its Small
Debts Jurisdiction on the trial of an action in which one Long
Lee was plaintiff and the defendant and one Chong Chow were
defendants.
3. The following evidence was adduced by the Crown : The
plaint summons and particulars of demand in the action were
for £27 19s. 9d. for goods sold and delivered by plaintiff to Lum
Hook and Chong Chow trading " together in partnership." — On
the hearing after the plaintiff had given his evidence and before
the alleged perjury was committed the plaintiff abandoned the
case against Chong Chow whereupon and without having amended
the proceedings in any way the Court proceeded to take evidence
for the defendant. The defendant gave evidence and in the
course of it made the statements upon which the perjury was
assigned and judgment was given for the plaintiff against the
defendant alone for the amount sued for.
4. Upon this evidence I reserved for the consideration of this
Honorable Court two questions viz. : —
(a) AVhether after the plaintiff had abandoned the case
against Chong Chow the action was as regarded the
defendant a judicial proceeding.
(b) Whether after such abandonment it was competent for
the Court to proceed further in the action against the
defendant alone.
5. I refer the Court to sections 15, 19, 21, 29, and 30 of The
/Small Debts Act of 1867 which induced me to reserve the questions.
6. The jury found a verdict of guilty and I postponed judgment
until the questions reserved had been decided and accordingly
committed the defendant to the prison at Townsville where he
now is.
7. I am in doubt whether the second section of The Criminal
Practice Act Amendment Act of 1876 has not been repealed by
implication by The Supreme Court Act of 1889. As this is the first
case reserved by a Northern Judge since the passing of the lattt r
Act I have reserved it for the Court at Brisbane in order that the
point may be considered. I request the decision of the Court
upon the questions reserved.
C. E. Chubb, J.,
Chambers, Supreme Court, Northern Judge.
Townsville, 29th April, 1891.
Byrnes, S.G., Scott with him, for the Crown.
There was no appearance for the defendant.
Byrnes : The question of jurisdiction is raised in this case,
whether a Crown Case Reserved by a Northern Judge should be
heard at Brisbane as heretofore, or at Townsville. The Supreme
214 QUEENSLAND JUSTICE OF THE PEACE.
Kegixa v. Court Act of 1889 expressly repeals The Supreme Court Act of 1874,
^" ^' ss. 15-21 inclusive, and the Act to amend The Supreme Court Act
of 1874 (41 Vic, No. 17), but no mention is made of The Criminal
Practice Amendment Act of 1876. By s. 2 of that Act, a Crown
Case Reserved by a Northern Judge, shall be heard by the
Supreme Court sitting at Brisbane. The practice is regulated by
ss. 48 and 49 of The Criminal Practice Act of 1865, which require
the case to be transmitted to the Judges of the Supreme Court.
By s. 7 of The Swpreme Court Act of 1874, the Supreme Court is to
be holden before three Judges, except under certain circumstances.
By s. 17 of The Supreme Court Act of 1889, the word Townsville
is to be substituted for Brisbane. But this is only a quaUfied
provision. On the ground of convenience, there can be no doubt
the cases should be heard in Brisbane, otherwise there might
be a dijfference of opinion between the two Judges, and a divergent
criminal practice exist in two parts of the colony. There is no
provision for an appeal from TownsviUe to Brisbane in criminal
matters. [Harding J. : There is no appeal in a Crown Case
Reserved.] Section 11 of the same Act excepts jurisdiction on
appeal from a decision of a Judge of the Supreme Court, and s. 4,
excepts any appellate jurisdiction vested in the Full Court at
Brisbane.
The Chief Justice : That decides the question. Section 2
of The Criminal Practice Act of 1876 is not repealed. The appellate
jurisdiction in criminal cases rests with this Court alone.
Byrnes : As to the merits, the difficulty of the Judge seems
to have been whether there was a judicial proceeding, as the
proceedings had not been amended. [Habding J. : The question
is simply — Can an action proceed against one defendant when a
non-suit is granted to another ?] The defendants were in partner-
ship. [The Chief Justice : That makes no difference.] The
points reserved are within the words of Denman J., in Reg. v.
Hughes, 4 Q.B.D. 614, at 637 — " I am of opinion, however,
that we ought not to have regard to the conviction, in considering
whether perjury was committed, but to look to the moment at
which the false evidence was-given, and consider whether at that
moment the Magistrates had jurisdiction to hear that evidence
judicially. And I think that they had jurisdiction to hear that
evidence judicially, if, at the time at which it was given, it was
evidence which in any possible event, they might have acted
upon judicially in a matter within their jurisdiction ; whether the
result of their acting upon it might have been to convict, or to
CEIMINAL REPOKTS, 1860-1907. 215
acquit, or to adjourn, or to send for trial, or to take bail, or to do EaaiNA '•
. •■ ' ' LuM Hook.
any other judicial act within their competency."
The Chief Justice : We think this was a judicial proceeding, The Chief Justice
and if the false evidence given was material, that there was perjury.
We answer question A, yes ; and question B, yes. The conviction
is sustained. Let the Judge give judgment.
Sohcitor for the Crown : J. Howard Gill.
[Brisbane Criminal Sittings.]
REGINA V. JOHNSON.
[4 Q.L.J. 130.— Note.— Sec. 207 of Insolvency Act (38 Vie., No. 5) is repealed, see
now s. 519 of Criminal Code.]
Criminal law — Insolvency Act (38 Vic, No. 5), ss. 31, 207) — 1891.
Married woman — Separate property — Married Women's Pro- ^Oth November.
perty Act (54 Vic, No. 9), s. 3, sub. 5. Harding J.
A married woman having separate property is liable to be convicted for an
offence under The Insolvency Act of 1874.
Information against Catharine Mary Agnes Johnson, for
feloniously quitting the colony within four months before the
presentation of a petition for adjudication, and taking with her
property to the amount of £50 and upwards, being a married
woman with separate estate.
Power and Mansfield, for the Crown. Gore Jones for the
prisoner.
Harding J. raised the preliminary question as to the liability
of a married woman under The Insolvency Act.
Mansfield : The information is laid under s. 207 of The Insol-
vency Act. By s. 31 of that Act the provisions of the insolvency
laws apply to all debtors resident in the colony. By the Married
Women's Property Act of 1890, s. 3, sub. 5, every married woman
shall, in respect of her separate property, be subject to the
insolvency laws in the same way as if she was unmarried. The
prisoner had separate property. Eversley on Domestic Relations,
292 ; Williams' Bankruptcy Practice, 315, 316 ; Duffy and Irvine,
Married Women's Property Law, 149, 151 ; Re Gardiner, 20
Q.B.D. 249 ; Holtby v. Hodgson, 24 Q.B.D. 103 ; Scott v. Morley,
20 Q.B.D. 121.
216
QUEENSLAND JUSTICE OF THE PEACE.
Regina I).
Johnson.
Harding J.
Habding J. directed the jury, who found the prisoner guilty,
with a recommendation to mercy on the ground that the prisoner
was not altogether a free agent in the matter. It was also
suggested by a juror that a married woman was supposed to-
obey her husband.
Habding J. : That presumption does not apply in cases of this
sort. These women have fought for their rights. Now they
have got them and must suffer Uke men. It is just as well for
women to know that, having demanded and obtained the rights
of men, they are subject to the same penalties in the event of
their transgressing the law. A year ago an offence of this nature
was not a crime under the law, but the Legislature had now placed
women in the same position as men, and they have to suffer
accordingly.
Prisoner sentenced.
Solicitors for prisoner : Chambers, Bruce and McNah.
1892.
24th February.
Chubb J.
[NoBTHERN Supreme Court, Townsvillb.]
HENDERSON, APPELLANT, v. MACDONALD, P.M., AND
McKIERNAN, RESPONDENTS.
[4 Q.L.J. 133.— Note.— Sees. 181 and 182 of the Justices Act (50 Vic, No. 17) are
repealed, see now ss. 443, 444 of Criminal Code. Sec. 102 ot Larceny Act
is repealed, see now s. 443 (1) ot Criminal Code.]
Justices Act (50 Vic, No. 17), ss. 181, 182Summary jurisdiction-
Receiving stolen goods — Larceny Act of 1865, ss. 4, 96, 102.
In cases of receiving stolen property, the summary jurisdiction of justices ia
restricted to the specific cases covered by s. 102 of The Larceny Acl.
A summary conviction for receiving stolen shutters quashed.
This was a motion under s. 209 of The Justices Act of 1886, to
quash a conviction.
Jameson, for the appellant, moved the rule absolute.
Ross, for the respondent, J. G. Macdonald, P.M., showed cause.
McKiernan, the other respondent, showed cause against costs
only.
The facts of the case were that on the 19th of January last two
wooden shutters, the property of McKiernan, were found by a
pohce constable, armed with a search warrant, upon the verandah
CRIMINAL REPORTS, 1860—1907.
217
of the appellant's dwelling. Appellant told the constable that
he did not claim them, or know whose they were, that they were
brought there by his son the afternoon before, while he was
from home, and that on his return he saw them there. The
shutters were last seen upon McKiernan's shop on the 16th, and
were missed on the 18th January. The appellant's son, called
for the defence, corroborated his father's statement and said
that he found the shutters upon the bank of a creek about one
hundred yards from the shop. Appellant's wife swore to the
son bringing the shutters home. The appellant was charged
with larceny and, electing to be tried summarily, was coni^icted
of receiving the shutters and fined.
Chubb J. : The appellant was tried summarily by the Pohce
Magistrate at Townsville under ss. 181 and 182 of The Justices
Act of 1886, for the larceny of two wooden shutters, under the
value of 40s., the property of McKiernan, and was convicted by
the Justice of feloniously receiving them knowing them to have
been solen. The rule granted by me to show cause why the
conviction should not be quashed contains two grounds, viz. :
(1) No evidence to support the conviction ; (2) That this offence
is not punishable on summary conviction. On the first ground
I am against the appellant. The Justice was evidently not
satisfied with the account given by him as to how he became
possessed of the property, consequently the presumptive evidence
of guUt arising from the recent possession of stolen property was
not rebutted, and there was, therefore, some evidence, though
sHght, upon which he could convict. I do not think that upon
that evidence I should have come to the same conclusion, but
I cannot go so far as to say that the Justice was wrong. It ia
not enough to say that the evidence was weak or conflicting,
or that this Court might have come to a different conclusion —
the rule is that, as the Justices are the judges of the facts, their
finding will not be reversed unless it clearly appears that they are
wrong, or, to put it in other words, that there was no reasonable
evidence to support the conviction. It cannot, therefore, be
disturbed on this ground. On the second ground a question of
the construction of the Statute is involved. The question is
whether the offence of receiving stolen shutters can be dealt with
summarily by Justices. Having regard to the provisions of
of ss. 181 and 182, and to the offences there enumerated, one
would, I think, expect to find the cognate offence of receiving
stolen property amongst them, but a careful reading of them does
Hendebson,
Appellant, v.
Maodonald,
P.M., AND
Eebposdents.
Chubb J.
218
QUEENSLAND JUSTICE OF THE PEACE.
Hendebson,
Appellant, v.
Macdonald,
P.M., AND
McElEBNAN,
Eespondents.
Chubb J.
not disclose any express mention of that offence. If, therefore, it
is covered by the sections, it must, I think, be found, if anjrwhere,
imphed in sub-section 2 of 8. 181 as an offence " declared to be
punishable as simple larceny." Now the offence of simple larceny
is, by s. 4 of The Larceny Act of 1865, punishable at the discretion
of the Court by penal servitude for three years or imprisonment
not exceeding two years with or without hard labour, &c., whereaf
the punishment for the offence of receiving is, by s. 96 of the
same Act, to be at the like discretion penal servitude for any
term not less than three or more than fourteen years, or similar
imprisonment, &c., as in simple larceny. Here, therefore, it is
patent, without more, that receiving is not " punishable as
simple larceny," which words I understand to mean " liable
to the same punishment." The counsel for the respondent,
however, relies upon s. 102 of the Act, which provides that where
the stealing of property is by this Act (Larceny Act) punishable
on summary conviction, the receiver of such property, knowing
the same to be unlawfully come by (this expression is peculiar)
shall be liable, on summary conviction before Justices, to the same
punishment as the thief would be. Counsel for the respondent
has failed to point out, and I have been unable to discover for
myself, that the stealing of shutters is by this Act made punishable
on summary conviction before Justices ; if this is so, therefore
the offence of receiving shutters cannot by virtue of s. 102 be
so punishable. There is a number of things specially named
in the Act, the stealing of which is made punishable "as in the
case of simple larceny," to which the provisions of s. 102 apply,
but shutters are not included in them — see for example ss. 26,
32, 33, 36. 37. Then (apart altogether from The Justices Act) is,
there any other statute which makes the steahng and receiving of
shutters punishable on summary conviction ? I cannot find any,
and the research of counsel has produced none. It appears
to me, therefore, that the offence of receiving in this case is not
within the summary jurisdiction of justices, and that the Police
Magistrate was wrong in so dealing with it. The result is curious,
because if he had convicted the appellant of stealing the shutters,
the conviction would have been good under The Justices Act. In
cases of receiving stolen property, the summary jurisdiction of
justices is, therefore, in my opinion, restricted to the specific cases
covered by s. 102 of The Larceny Act, consequently this conviction
must be set aside, but under the circumstances, without costs. It
may be, and probably is, a casus omissus on the part of the
CRIMINAL EEPORTS, 1860—1907.
219
draftsman, as the addition of the words, "or the offence of
receiving stolen property the stealing of which would be simple
larceny," at the end of subsec. 2 of s. 181, would have covered
the point. A consequential amendment would, of course, be
necessary in s. 182. Order absolute to quash the conviction
without costs.
Solicitor for appellant : E. J. Forrest.
Solicitor for respondent P.M. : C. Selwyn Smith, Northern
Crown Solicitor.
Henderson,
Appellant, v.
Maodonald,
P.M , AND
McKlEKNAN,
llESPOXDENTS.
Chubb J.
[Pull Court.]
BILBY V. HARTLEY AND OTHERS.
[4 Q.L.J. 137.— Note.
-6 Geo. IV., c. 129, s. 3, is repealed, see now s. 534 ot Criminal
Code.]
Criminal law — Intimidation — 6 Geo. IV., c. 129, s. 3 — Effect of
9 Geo. IV., c. 83 — Excessive fine — Amendment — Justices Act
(50 Vic, No. 17), ss. 173, 174, 214, 223, 225.
B. was convicted on a charge of intimidation under 6 Geo. IV., c. 129, s. 3.
Certain shearers, besides B., were endeavouring to raise subscriptions for the
defence of some fellow labourers then committed to trial. B. and another shearer
asked some free labourers to subscribe to the fund. They refused to do so. B.
then said " If you come here to dinner I'll chuck you out," and made use of very
foul language. The free labourers were also told if they came in to tea they would
be very roughly handled. They considered their lives in danger, and complained
to the manager of the station. The justices fined B £10 and £25 123. 8d. for costs,
in all £35 12s. 8d., or in default three months' imprisonment with hard labour.
Held, that the language used amounted to intimidation ; that the fine was
excessive under s. 173 of The Justices Act, inasmuch as the defendant would be
liable to imprisonment for six months under s. 174 of that Act, while the greatest
term of imprisonment under 6 Geo. IV., c. 129, was three months, and that the
fine must be reduced to £4 19s. llfd., and the conviction be upheld.
6 Geo. IV., u. 129, is applicable to Queensland. The effect of 9 Geo. IV., c. 83,
discussed.
Motion for a rule absolute quashing the conviction of Frederick
Bilby, a shearer, before Messrs. W. J. Hartley, P.M., and P. J.
Phillips, J.P., at Blackall, 22nd of September last, on a charge of
intimidation, on the grounds that the justices had no power or
authority (1) to impose or order payment of a fine ; (2) to impose
or order payment of a fine with alternative imprisonment ; (3) to
1892.
February.
220 QUEENSLAND JUSTICE OF THE PEACE.
■^Tro Omers'!''' °^^^^ *^® payment of the sum of 7s. 8d. for costs ; (4) to order the
payment of the sum of £15 15s. cost of witnesses' travelling
expenses ; (5) to order payment of the fine of £10 10s. ; (6) to
impose the penalty and imprisonment ordered ; (7) that the
statute 6 Geo. IV., c. 129, is not in force in the colony of Queens-
land ; (8) that there was no evidence before the justices of
intimidation under the lastmentioned statute.
Lilley, and Conlan, to move absolute the order nisi ; Sir S. W.
Griffith, Q.C., A.G., Byrnes, S.G., and W. A, D. Bell, for the Crown.
Lilley : The facts of the case are these : Prior to September, 9th
1890, certain persons were committed for trial at Rockhampton for
cutting Ebor Creek Bridge. The shearers in the western parts of
the colony, of whom Bilby was one, were raising subscriptions
for the defence of the prisoners, and to get them witnesses and
food during the time they awaited trial. This was being done at
Terrick station, near Blackall, where Bilby was working. On the
morning of September 9th he and Turbot asked certain free
labourers at the breakfast table to subscribe. The evidence at the
prosecution was as follows : Turbot said, " Do any of you fellows
refuse to pay 6s. lOd. towards defraying the rations fund of the
shearers awaiting trial at Rockhampton over the Ebor Creek
affair." AUis said, " I refuse to pay," and so did Oakden and
Riding. Turbot then went to his mates amongst the unionists,
who refused to eat at the same table as the free labourers, and said,
" Here's these men refuse to subscribe. I'll make one to chuck
them out." Bilby went over to the three and said, " Do you
refuse ? All the rest have paid." Allis replied, " I refuse."
Bilby said, " Then don't come here to dinner ; if you do I'll
chuck you out." At midday they all went to their dinner as
usual, when Turbot produced a number of lists for the men to sign
for the expenses of the witnesses. Turbot asked Allis to sign,
and he refused. Turbot again said to his mates, " Here are three
men who won't sign, I'll make one to chuck them out." Bilby said
to AUis and Oakden, " If you come to tea you will be chucked
out," and Turbot added, " I'll make one to chuck them out as fast
as they come in." At tea time the three went for their tea,
and found nothing had been left for them. Turbot said, " If any
of you come in you will be handled." Allis accordingly
considered his life was in danger. He went over to Sutherland,
the overseer, and had his tea with him. The next day AUis
spoke to the manager, and he advised him to seek the protection
of the law. The overseer also spoke to Bilby, who refused " to
CRIMINAL EEPOETS, 1860—1907. 221
cook for the scabs." Allis subsequently laid an information ^"''^'^ «. Hartlett
against Bilby under s. 3 or 6 Geo. IV., c. 129. That section
provided that every person who by violence, threats, or other
means, intimidated another, should, on conviction, be sentenced
to imprisonment, or be imprisoned for any time not exceeding
three months, with hard labour. Under s. 173 of The Justices
Act, power was given to a magistrate to substitute a fine for
imprisonment, to any amount not exceeding £25, provided the
amount should not be such as would subject the offender, in
default of the penalty, to any greater term of imprisonment
than that to which he was Uable under the Act authorising his
imprisonment. In this case the period of imprisonment fixed
by the section of the Act of George IV. was three months. The
Justices, however, fined Bilby £10 and £25 12s. 8d. costs, or in all
£35 12s. 8d., or in default three months' imprisonment with hard
labour. Among the costs they included the expenses of Bilby's
commitment (in the event of his not paying the fine), and of his
conveyance from Blackall to the Rockhampton Gaol. Under
s. 174 of The Justices Act they had no power to inflict a fine of
more than £5, because if they had imposed a greater fine they
would have subjected the offender to a term of imprisonment
exceeding the three months which he was liable to under the
Act of George IV. [Harding J. : They only gave him three
months.] That was so ; but they made him run the risk of
getting six months, because by imposing a fine of more than £5,
they laid him open to imprisonment for six months. They also
ordered him, in default, to pay the costs of his commitment and
conveyance to Rockhampton Gaol. Those costs were an un-
ascertained amount, and it would have been possible for Bilby's
gaoler to have kept him in prison for an indefinite time, and to
have made him pay an indefinite amount. [Real J. : They
first impose a fine, and if he does not pay they make an order
for his commitment, but before that is carried out, the amount
he has to pay has to be specified in the warrant of commitment.]
I object to all the findings of the justices, and maintain that the
statute of Geo. IV. did not apply, and that there was no evidence
under it of intimidation.
Griffith, Q.G., A.G. : The Solicitor-General and myself are here
because this case raises matters of great importance. It raises the
question of whether a statute was in force in the colony which
was supposed to be in force, and under which persons had been
deprived of their Uberty. If the statute was not in force, the
222 QUEENSLAND JUSTICE OF THE PEACE.
BiLBT i>. Hartley sooner that was made clear the better. Certainly we are not in
AND Others. . ■ •■ , .
court to discuss a question of form in connection with this con-
viction. We are here on behalf of the Crown to assist the court
to come to a conclusion on the matter, and not on behalf of the
respondent. [Harding J. : If this conviction is bad in form,
you may never get to the other question. The Chief Justice :
I doubt very much whether you could amend the conviction under
the statute in this case.] The rule raised a question of great
importance, and we are here to meet it, but now there appears
to be a technical defect on the face of the conviction. [Hahding
J. : All the sentences under this Act have expired a long time
ago, and there cannot be any person suffering under it now.]
Lilley : The Rockhampton men were not sentenced under
that Act, but under common law.
Harding J. : There was a great parade at first of this sort
of thing, and I looked at Geo. IV., but I did not use it in any
shape or form. I always carefully avoid anything which may
possibly burn my fingers.
The Chief Justice : If it turns out that Geo. IV. is touched
upon by anyone, if necessary we will decide it ; but we may never
get to it.
The Attorney-General : On the question of amendment, pro-
vision was made in ss. 213, 214, and 223 of The Justices Act to
correct convictions and impose a proper penalty. Section 223
laid down that " when on a conviction there is some excess which
may (consistently with the merits of the case) be corrected, the
conviction shall be amended accordingly, and shall stand good
for the remainder." The amount which the justices had power to
impose was not more than £5, and there was some doubt whether
it must not be less than £5. Under the scale given in s. 174 it
must be less. [The Chief Justice : We are inclined to think
that the amount ought to be reduced to £4 19s. llfd. At present
we relieve of the burden of the question of excess.] I do not
pretend that there is no excess. [The Chief Justice : No, that
is clear. The action of the justices would have exposed the man
to six months' imprisonment instead of three. The fine is a
most excessive one, and ought to be reduced to £4 19s. llfd.]
Then the main question is whether the statute is in force in the
colony. I contend that the statute is in force. It had been
suggested at one time that it appUed only to the rules of practice
in the Court. [The Chief Justice : It was suggested by Lord
CRIMINAL REPORTS, 1860—1907. 223
Chelmsford, but never seriously argued. It was not even an obiter ^^^^'^ «. Hartley
dictum.] The administration of justice had gone on since that,
and all the laws of England relating to property and to criminal
matters, so far as they could be applied to the conditions of the
colony, are in force here. Blackstone, in his definition of those
statutes, said : " That so much of them remained in force as were
apphcable to the circumstances and conditions of the colony in
which it was sought to apply them." 6 Geo. IV., c. 129, is a
statute applying to criminal offences'; 9 Geo. IV., c. 83, which
repealed many Acts relating to workers, extended such statutes
as were applicable to the condition and circumstances of the
colony. [Haeding J. : All the labour laws against labour were
repealed, but not this one.] My contention is that 6 Geo. IV.,
c. 129, being a law relating to the liberty of the subject, and for
protection of the subject from violence to his body, and what was
akin to intimidation in my mind, is one applicable to the con-
ditions and circumstances of the colony. In the case of Regina v.
Druitt, 10 Cox C.C. 592, Lord Bramwell said " that there was no
right in this country under our laws so sacred as the right of
personal liberty. No right of property or capital, about which
there had been so much declamation, was so sacred or so carefully
guarded by the law of this land as that of personal liberty.
They were quite aware of the pains taken by the common law —
by the writ, as it was called — of habeas corpus, and supplemented
by statute, to secure to every man his personal freedom, that he
should not be put in prison without lawful cause, and that, if he
was, he should be brought before a competent magistrate within a
given time, and be set at Uberty or undergo punishment. But
that liberty was not liberty of the body only. It was also a
liberty of the mind and will ; and the liberty of a man's mind and
win to say how he should bestow himself and his means, his
talents, and his industry, was as much a subject of the law's
protection as was that of his body. Generally speaking, the way
in which people had endeavoured to control the operation of the
minds of men was by putting restraints on their bodies, and,
therefore, we had not so many instances in which the liberty of
the mind was vindicated as was that of the body. Still if any
set of men agreed among themselves to coerce that liberty of
mind and thought by compulsion and restraint, they would be
guilty of a criminal offence, namely, that of conspiring against
the liberty of mind and freedom of will of those towards whom
they so conducted themselves." And he laid it down as clear
224 QUEENSLAND JUSTICE OF THE PEACE.
BiLBTD Hartley ^nd undoubted law " that if two or more persons agreed that they
AND OtHEBS. 1 • j. j.1. j. tt
would by such means co-operate together against that hberty
they would be guilty of an indictable offence." That was the
common law of the offence which had been re-enacted by 9 Geo. IV.
c. 83. If any serious argument is to be made that the language
used is not intimidation, I refer to this ease. The language used
is stronger than any previously reported. No decent person
could remain on the station and submit to it. [Real J. : If it
were applied to me, and, there were a great number there, I should
provide myself with a pistol. I would rather pay the 6s. lOd.
than have it applied to me.] Most men would prefer to pay
6s. lOd. rather than submit to such language. This was a criminal
offence under 6 Geo. IV., c. 129, and re-enacted as such by 9 Geo.
IV., c. 83. The former statute was equally applicable to New
South Wales as to any other place. It was an Act for the liberty
of the subject, and, therefore, came within the words of the
statute which brought such laws into force as were applicable
to the circumstances and conditions of the colony. [The Chief
Justice : I think the offence comes under the 3rd section of the
Act, and would affect the mind of any reasonable being.] Under
that section, it was held in O'Neil v. Longman, 4 B. & S. 376, that
asking a man whether he intended to remain in a shop after the
others had gone out on strike, and have his name circulated
throughout England, was an offence. [The Chief Justice :
Very likely. In the old days tradesmen had travelling cards
allowing them to visit town after town until they gradually
worked their way to London. Such a thing would seriously
affect them. There is nothing either on the face of the statute
or in the circumstances of the colony to make 6 Geo. IV. excep-
tional.] No. It is an Act that applies to all trades for the
protection of property, and therefore comes within the laws of
the colony. On the merits the matter entirely fails.
Byrnes S.G. : If the statute 9 Geo. IV., c. 83, came into force
in New South Wales, and remained in force in that colony, it
would of course have come into force here by virtue of The
Constitution Act, s. 33. In Webb's Imperial Law and Statutes,
p. 4, a dictum of Blackstone is quoted. " Colonists carry with
them only so much of the English law as is applicable to their
own situation and the condition of an infant colony ; such, for
instance, as the general rules of inheritance, and of protection
from personal injuries." [Habding J. referred to Yeap Cheah
Neo V. Ong Cheng Neo, L.R. 6, P.C. 381.] This was a statute
CEIMINAL EEPOETS, 1860-1907. 225
designed to protect men from intimidation and violence, and it Bilby «. Hartley
111- 11- .1 T *''i> Othebs.
would be introduced into the colony with civilisation. [Haeding
J. : A considerable portion of criminal laws are statutory, and
can be applied to the colonies. Those in reference to the king,
for instance. If there can be special statutes provided for the
king, why not provide them for individuals ?] That argument
is unanswerable.
Lilley, in reply : To decide whether 6 Geo. IV., c. 129, was
applicable to the colony, we must look at the state of New South
Wales at the time it was passed. From the Acts quoted I will
show that the condition of labour in that colony then was entirely
different to what it was in England. At that time it was not
competent in New South Wales for employers to engage appren-
tices until they passed an Act for that purpose. That Act
happened to come into force only eight days before 9 Geo. IV., 13,
was passed in England. The English statute was passed to remedy
the previous laws which were found to be inapplicable to the
state of affairs then existing amongst tradesmen. [Habding J. :
Would not the same observations apply to the Magna Charta ?]
No. Magna Charta protected all England, "without applying
to any particular class. 6 Geo. IV. was passed to deal with
labourers only. By its preamble it could be seen it was specially
intended for local purposes. In 1828 the majority of the work-
men in New South Wales were convicts. [Haeding J. : Surely
you don't contend that when New South Wales was made free
people could only come to the colony subject to convict laws ?]
Would this Act then relate to a combination amongst criminal
classes ? [Hakding J. : No. When 9 Geo. IV., 83, was passed,
it applied to free people.] 9 Geo. IV., No. 9, which was passed in
New South Wales years after No. 6, was the first Act to deal with
labourers in the colony. In the preamble it says : " Whereas
as many Acts are not applicable to New South Wales." That
shows what the people thought then. [Real J. : 9 Geo. IV. ,9,
deals with the relations of masters and servants, and not with
labourers' relations amongst themselves. [The Chief Justice :
Then that Act would not help us much.] 9 Geo. IV., No. 8,
provides for employers engaging apprentices in New South Wales.
If people brought the laws of England with them, what was the
use of passing this Act ? [Real J. : You can hardly make out
that the laws do not apply to the colony when the legislature
states they shall apply.] It has been held that before you can
say 9 Geo. IV., 83, applies, you must look at the circumstances of
226 QUEENSLAND JUSTICE OP THE PEACE.
BiLBT u. Haktley ti^e colony. Otherwise, you cannot say tliat the Act is appHcable.
That is the ruling in the Penang case of Yea'p Cheah Neo v.
Ong Cheng Neo, L.R. 6 P.O. 381. I contend that the circum-
stances of the colony were so entirely different at that time, that
the old English Act could not apply. The first Masters and
Servants Act in England was 9 Geo. IV., c. 9. [The Chief
Justice : The Masters and Servants Act before that was the
whip.] 9 Geo. IV., c. 83, also dealt with masters and servants,
and absconders, besides dealing with servants against servants.
The very necessity of passing an Act like 8 Geo. IV., shows that
No. 9 did not deal with the colonies. In Whicker v. Hume,
129, 7 H.L., 124, it was held that the statutes of mortmain did
not apply to the colony of Grenada, there being no special circum-
stances therein for such application ; and it was also held that
9 Geo. IV., c. 83, had not local appUcation, although the subse-
quent opinions on this point went the other way. Again
6 Geo. IV., c. 129, prescribed a remedy in certain courts which
had not similar courts in New South Wales.
Sir S. W. Griffith : 9 Geo. IV. empowers the colonies to estab-
lish courts of quarter session.
Lilley : But that was afterwards. [Sir S. W. Griffith : Courts
of quarter sessions were authorised to be estabHshed in New
South Wales by 4 Geo. IV., c. 96. [Real J. : It is quite clear
that there were courts of quarter session in the colonies before
6 Geo. IV.] In another case, that of the Attorney-General
V. Stewart, 2 Merivale 143, mortmain statutes were held to apply
entirely in England. I contend that 6 Geo. IV., c. 129, was
specially passed for England, and at the time of 9 Geo. IV., c. 83,
was never intended to apply, and did not apply to New South
Wales. That is borne out by the Penang cases, where the Judges
held that the statutes particular to England did not become part
of the Penang laws, because the common law had been introduced
into them. [Haeding J. : To show that 6 Geo. IV., c. 129,
cannot be applicable to New South Wales, you have got to prove
that only convicts were working there when the Act was passed.
There were sailors going to that colony then. How about them ?]
6 Geo. IV. does not apply in any way to sailors. [The Chief
Justice : I take it the position is this. 6 Geo. IV., c. 129, was
passed for the condition of things existing in England at that
time. The same condition of affairs was not existing when 9
Geo. IV., e. 83, was passed ; but if the circumstances arose which
made 9 Geo. IV. applicable in New South Wales, it would be
CEIMINAL REPORTS, 1860-1907. !i27
applicable for all time unless repealed.] I contend that 6 Geo. IV. ^'''''* «. Habiley
^ -■ AND UTHEIta,
-was passed purely for local circumstances. If those same circum- —
stances now apply in Queensland, but did not apply at the passing
of that Act, that Act cannot apply to them. [Harding J. : As
I said before, the same observation would apply to Magna Charta.]
If the Chief Justice's proposition is good, the mortmain laws in
Whicker v. Hume, which were held not to apply to the particular
circumstances of Grenada, would apply. [The Chief Justice :
They could not apply here, because there are no monasteries or
any great establishments eating up the land. That evil went to
the root of the English Reformation. People, as the people,
wanted to get hold of the land belonging to the monasteries.
If general laws were passed in England, and the circumstances of
the laws afterwards became applicable to the colonies, would not
9 Geo. IV., c. 83, also become applicable ?] I submit not.
[The Chief Justice : If I understand you aright, you contend
that if the circumstances in New South Wales were not applicable
to 9 Geo. IV., c. 83, when passed, they cannot be applicable now ?]
No. Several laws in Forsyth's Cases on Constitutional Law
have been held not applicable to the colonies, amongst them even
penal Acts. In Astley v. Fisher, 6 C.B., 572, Maule J. held that
■9 Geo. IV., c. 83, did not import into the colonies all English
laws. If any laws but those applicable to the colony at the
time they were passed could be imported into our code, it would
not be possible to know the law of the land. [The Chief Justice :
That is the way with all laws. The law does not arise until the
offence is committed.] Yes ; but you know what the law is. If
6 Geo. IV., c. 129, can now be revived and sprung upon us at a
moment's notice, we are living in a very risky state of affairs,
and the sooner the Court decides the point the better. With
respect to intimidation, threats were used but they did not
amount to intimidation. Connor v. Kent, Gibson v. Lawson,
Gurran v. Treleaven, (1891), 2Q.B. 545.
Conlan followed.
The Chief Justice : This is a rule calling upon the justices The Chief Justice
and Henry AUis, to show cause why an order should not be made
directing that the conviction or order made by the justices and
others at Blackall, in a certain complaint, in which one Allis
was complainant, and Bilby was defendant, should not be quashed
on the following grounds : — That the justices had no power or
authority (1) to impose or order payment of a fine ; (2) to impose
or order payment of a fine with alternative imprisonment ; (3) to
The Chief Justice
228 QUEENSLAND JUSTICE OP THE PEACE,
BiLBY u Hartley order the payment of a sum of 7s. 8d. for costs ; (4) to order the
AND UTHGBS.
payment of the sum of £15 158. costs of witnesses travellings
expenses ; (5) to order payment of the fine of £10 lOs; ; (6) to
impose the penalty and imprisonment ordered ; (7) that the-
statute 6 Geo. IV., c. 129, is not in force in the colony of
Queensland ; (8) that there was no evidence before the justices
of intimidation under the lastmentioned statute. Well, upon the
question of the various amounts, there is no doubt that it is
conceded that the magistrates imposed an excessive fine, which
might have exposed the defendant Bilby to excessive imprison-
ment ; because if the statute under which the complaint was-
undoubtedly laid is in force in the colony, the term of imprisonment
is limited to three months, whereas the fine imposed by the
magistrates, if unpaid, would have subjected Bilby to six months'^
imprisonment ; as it was, the Magistrates kept the term of
imprisonment within the term imposed by the statute 6 Geo. IV.,
but there was undoubtedly an excess in the amount of the fine
imposed. That being conceded, an application was made by the
Attorney- General, under The Justices Act, for leave to reduce the
excess so as to bring it within such an amount as would leave a.
possible or alternative punishment of only three months, and
so, in fact, impose the magistrates' imposition of only three
months' imprisonment. We see no reason why we should not
concede that application, and reduce the penalty imposed by the
justices to £4 19s. llfd., which will then allow the order of the
justices imposing three months' imprisonment to be upheld.
Of course that includes everything — both penalty and costs —
and reduce the whole to one sum of £4 19s. llfd. That, as I
said, would allow the order of the justices to be upheld, if on the
remainder of the case we think the prosecution is sustainable.
Assuming that the Act 6 Geo. IV., c. 129, under which the
prosecution was begun, continued, and finished — assuming that
to be the law for the moment — I will first mention the question
of the substantial merits of the case. The facts are too disgusting
to be recited from the bench. The question of intimidation arises
under the s. 3 of 6 Geo. IV. It is provided under this particular
section —
"that from and after the passing of this Act, if any person,
shall by violence to the person or property, or by threats
or intimidation, or by molesting or in any way obstructing
another, force or endeavour to force any journeyman manu-
facturer, workman or other person hired or employed in.
any manufacture, trade, or business, to depart from his
CEIMINAL EEPORTS, 1860-1907.
229
hiringj or prevent or endeavour to prevent any journey- Bilby v. Habtlby
man manufacturer, workman, or other person not being hired *''" ^™'^°^'
or employed from hiring himseK to, or accepting work or employ- The Chief Justice
ment from any person or persons ; or if any person shall use or
■employ violence to the person or property of another, or threats
•or intimidation, or shall molest or in any way obstruct another
ior the purpose of forcing, or inducing such person to belong to
any club or association, or to contribute to any common fund,
or to pay any fine or penalty, or on account of his not belonging
to any particular club or association, or not having contributed
or having refused to contribute to any common fund, or to pay
any fine or penalty, or on account of his not having complied
or of his refusing to comply with any rules, orders, resolutions, or
regulations made to obtain an advance or to reduce the rate of
wages, or to lessen or alter the hours of working, or to decrease or
alter the quantity of work, or to regulate the mode of carrying
on any manufacture, trade, or business, or the management
thereof ; or if any person shall by violence to the person or pro-
perty of another, or by threats or intimidation, or by molesting
■or in any way obstructing another, force, or endeavour to force
aiiy manufacturer or person carrying on any trade or business to
make any alteration in his mode of regulating, managing, conduct-
ing, or carrying on such manufacture, trade, or business, or to
limit the number of his apprentices, or the number or description
of his journeyman workmen, or servants ; every person so offering,
■or aiding, abetting, or assisting therein, being convicted thereof
in manner hereinafter mentioned, shall be imprisoned only, or
shall or may be imprisoned and kept to hard labour, for any
time not exceeding three calendar months."
I think, the information was that the threats or intimidation were
used on account of Henry AUis the complainant not having
■contributed to a common fund. It appears that a common fund
iad been formed for the purpose of making a provision or in some
way providing for the comfort of some men who had been com-
mitted on a criminal charge. We can hardly fail to see that
these troubles arose out of the recent unhappy disturbances
between labour and capital as they are repeatedly called. We
sit here to take no part on either side, whichever way our sympa-
thies may lie with one party or the other. It is not of course
for us to make -any display of sympathy, nor to be influenced
by any in our determination on what is really presented to the
Court as a dry question of law. Our duty is limited entirely to
that. Whichever way our decision goes, it implies sympathy
with neither one party nor the other in respect to their relations
one to the other, as capital or as labour. I will deal with the
questions arising out of the trial, on the supposition that this
statute of 6 Geo. IV., c. 129, is in force in the colony. The
280 QUEENSLAND JUSTICE OF THE PEACE.
UiLBY V. Hartley trouble appears to have arisen in consequence of Allis not having
AKD Othebs. contributed, or refusing to contribute, 6s. lOd. to a common fund
The Chief Justice — a fund which was really got up to give some help to men who-
are now in gaol on a criminal charge. Looking at the language
on the depositions, which is much too foul to pass through the
mouth even of the Judge, whose position sometimes necessitates
that he should recite such language, I think it is not necessary
for me to recite it now. There is one part sufficient, without
touching upon the fouler part, to sustain the charge (supposing
the statute 6 Geo. IV. to be in force) that is : that the man
was threatened if he did not contribute this sum of money he
would be " chucked " out. We know very well that that means
he would be thrown out and possibly injured if he did not submit
to this dictation. Well, I think, that would be quite sufficient
in itself to inspire in a man of reasonable strength of mind some
degree of fear or discomfort, or a sense of an attempt being made
to coerce him to do that against which his mind or his reason
might rebel. I think it is perfectly clear that, upon the facts of
the case, there was sufficient material to justify the magistrate in-
coming to the conclusion that intimidation had been given.
That being so, on the merits, the rule would have to be dismissed,
but there is a further question of importance in the case, and I
need not, perhaps, hesitate to say that a very great deal of clamour
has been raised with regard to the character of the Act under
which this prosecution was begun and ended. This is the Act
6 Geo. IV., c. 129. Of course, if that Act is not in force in the
colony the whole prosecution had no foundation, and the rule
would have to be made absolute. Without going into the earUer
Acts applicable to New South Wales, which, I think, it would be
quite unnecessary for my part to go into, I think it depends —
the operation of the question whether this Act is in force in this-
colony depends — upon two things. First, what is the meaning of
9 Geo. IV., c. 83 ? What law did it import into this colony,,
and is there anything in 6 Geo. IV. that is repugnant to the existing
state of circumstances in the colony, or was so when 9 Geo. IV..
was passed, that it was impossible to show that the legislature
could contemplate the importation of 6 Geo. IV. into the law of
New South Wales ? 9 Geo. IV. provides —
" Provided also, and be it further enacted, that all laws and
statutes in force within the realm of England at the time of the
passing of this Act (not being inconsistent herewith, or with any
charter or letters patent, or order in council which may be issued
in pursuance hereof) shall be applied in the administration of
CEIMINAL EEPORTS, 1860-1907. 231
justice in the Courts of New South Wales and Van Die man's Bilby v. Habtlby
Land respectively, as far as the same can be applied within the ^'^^ Othbrs.
said colonies." The Chief Justice
and so on. Now, many years ago, a very eminent Lord Chancellor
hinted that the words " applied to the administration of justice,"
might possibly allude to the appUcation of this statute to the
practice of the Courts, but would merely import into New South
Wales the practice of the English Courts. Well, my understanding
— and I speak with deference in criticising so eminent a Judge —
my understanding of the words " administration of justice,"
implies that not only the practice of the law, but the substantive
law, and the practice is intended to apply. I think, therefore,
that these words imported not merely the practice of the Courts,
but the actual substantive law of England, so far as it applied to
the circumstances of the colony. That means, to my mind,
that if the circumstances of the colony are such, or the
circumstances of a particular case are such that the law
caimot be appUed, it obviously should not be applied. In that
case, the law of England — the substantive as well as the practical
law — would cease to have any effect with respect to the particular
case within the colony. At all events, whatever the circumstances
of the colony might be at the time of the passing of 9 Geo. IV.,
if the Act 6 Geo. IV. is not inconsistent with those circumstances,
and if it could be appUed, then probably it must be applied in the
administration of justice. I am inclined to think myself, and
probably it is important in connection with this case, that
although the circumstances existing at the passing of 9 Geo. IV.
might not make 6 Geo. IV. appUcable, or it might be inappHcable
to the existing circumstances, still, if in the progress of Hfe and
society circumstances so altered within the colony that it would
apply, or it might be appUcable, then, I think, it would have to
be applied, because there are many things which legislatures do not
legislate for immediately. They legislate not only for immediately
existing evils, but for prospective evils that are Ukely to arise.
Now there is one of the statutes which have been referred to,
which uses the words " to prevent certain misconstructions." If
these misconstructions did not exist in the colony of New South
Wales after the passing of that Act, and have not arisen, the Act
would of course apply. In fact, a statute is passed to-day, but it
speaks for all time until the legislature sees fit to repeal it, change
it, or modify it. • A statute is not passed for a day ; it is passed
for all time until the legislature sees fit in its wisdom or in its
232 QUEENSLAND JUSTICE OP THE PEACE.
BiLBY V. Haetley folly, to repeal it, to modify it, or to re-enact something else in
AND Othehs. .^^ ^lo^QQ^ So long as it is in the Statute Book, if the circumstances
The Chief Juetiee to which it might apply or ought to apply arises, it is our duty,
sitting as a Court here, to apply it. I think the question then is :
Is there anything in 6 Geo. IV. so absolutely inconsistent with the
circumstances existing at the present time, that its provisions
cannot be applied in the administration of justice ? On the face
of it, looking at this Act — which seems to have repealed all the
existing Acts affecting labour combinations, and to have passed
one general statute — I may say that I cannot resist the conclusion
that, at aU events, in respect to this particular offence, there is
nothing in the statute inconsistent with its application in this
colony. On the contrary, it seems to me to apply to the circum-
stances of this particular case. I may say in dealing with statutes
brought into force by the operation of 9 Geo. IV., c. 83, some
portion of the statute may not apply, and some other portion
may apply. Time or change of circumstances may sweep away
the operation of a part of the statute, or time may bring
into operation other parts, or may retain other portions of the
statute in force, notwithstanding the lapse of time. Therefore,
I am not prepared to say that the statute obviously is not intended
to apply to the colony. The mere fact that you can pick out
from the centre some few words which would have laid the
foundation for prosecutions of this sort, would probably not be
sufficient to justify them, but looking at the whole thing there is
nothing in this Act, in its object, or in its character, that is in any
way inconsistent with the appUcation of some portion of it,
whilst in regard to other portions, one might disregard its appUca-
tion. There is nothing on the face of it, that I can see, that would
make 6 Geo. IV. inapplicable. Therefore, by the operation of
9 Geo. IV., c. 83, I think it has been brought into force in the
colony, and it remains in force, and that the prosecution was well
founded. I think, therefore, there ought to be reduction with
regard to the money, reduction of the excess, and the conviction
ought to be upheld. On the two questions whether the sub-
stantive offence was proved, and whether that offence was against
the law of the colony, I think they are settled by the operation of
these two statutes here. With regard to the question of excess,
I think the complainant ought to have his costs. It is qiiite
clear he was compelled to come here, and that on the other part
of the case the Crown ought to have their costs ; so that there will
be two sets of costs.
CRIMINAL REPORTS, 1860-1907.
233
Harding J. : I agree in great part with the judgraent of ^^^^^ «. Hartley
mi /^i •tT't-rti* 1 AND UTH£.nSt
ihe Ohiei Justice, but I defer expressing my opinion as to the
application of English law to this matter. I think the statute Harding J.
9 Geo. IV., passed a mass of laws for New South Wales, which were
to be extracted from the larger mass of the laws of Great Britain
and Ireland, so far as they were appUcable to the colony. Secondly,
I think that the laws that could be taken out from the Statute
Book and the Common Law at the time of the passing of that
Act, are and were at once, and have ever since been the law of
New South Wales. I don't think that if any part of the statute
law of England was not at that time brought in by 9 Geo. IV.,
and at once became appUcable if the cause arose, that it, so to
speak, lay dormant and became law at a future time. I would
put it this way : that by 9 Geo. IV. all EngUsh law applicable
to the colony at once attached, and although the occasion for the
use of it might not arise for ten years, twenty years, or fifty years,
still it was there as the sanction for the ^ionduct of the people
thereafter. I consider that the moment 9 Geo. IV. was passed
it became part of the law, and has ever since remained law as a
sanction for the good conduct of the people. The rule must be
discharged in the terms mentioned by The Chief Justice.
Real J. : I have nothing to add to the judgment of The Chief Real J.
Justice. I desire to offer no opinion on the question raised by His
Honor, because I have not sufficiently considered it. To my
view the circumstances of the colony at the time of the passing
of 9 Geo. IV. was clearly such as would render 6 Geo. IV. capable
of being applied. Consequently, the effect of the statute 9 Geo.
IV., would be such as to apply that law. It was not sufficiently
argued, and I have not sufficiently considered it to offer any
opinion on the point thrown out by The Chief Justice as to whether,
if the circumstances of the colony had been such that 6 Geo. IV.
was not applicable at the year of the passing of 9 Geo. IV., an
alteration in them made it applicable, and we could hold it to be
applicable. It was not necessary to consider that question in
this case, and it has not been argued and I have not considered
it sufficient to express an opinion. In every other respect I
concur in the opinions expressed in the judgment of The Chief
Justice.
LiLLEY C.J. : The excess is to be reduced with costs. The rest Lilley C J,
of the rule is to be discharged without costs. I agree that there
was not sufficient time to consider the point I raised. With
234 QUEENSLAND JUSTICE OF THE PEACE.
BiLBY 1-. Hakxley regard to that it is a very fine point, and my opinion, no doubt,
AKD OtHEBS.
Lilley C.J.
on that, will be taken as academical.
Solicitor for appellant : A. J . Thynne.
Solicitor for repondents : Crown Solicitor.
[Full Cotjkt.]
RAWLINGS V. HALY AND ANOTHER.
1 4 g.L.J. 160. — Note.— 29 Vic, No. 5, s. 26, is repealed, see now ss. 22, 469, and
^ 476 of^Criminal^Code.S See>lso;^ Black v. Turner (6 Q.L.J. 153, post), Keable
l^^ V. Clancey (3 Q.J.P.R. 206, 1909 S.B.Q. 345).]
1892. Injuries to Property Act of 1865 (29 Vic, No. 5), s. 2Q—Bona fide
ilai'cJi. claim of title — Jurisdiction of justices.
itZte|/ G.J. jj agreed to sell land to C. C. paid part of the purchase money. About three '
Real J. weeks afterwards, but before the whole of the purchase money had been paid, R.
began to remove the wire from the fence surrounding the land agreed to be sold.
C. laid an information against R., under s. 29 of The Injuries to Property Act of
1865. It appeared from the evidence that there was a dispute as to certain of
the terms of sale. C. said K. was entitled to take away a crop of potatoes. R.
said he was entitled to take away the improvements, and that he removed the
wire under the bona fide belief that the property was his, and that he was entitled
to do so.
R. was convicted and ordered to pay a fine of £5, with £7 for damages, and
£3 3s. for costs, or in default of payment, to be imprisoned for three months.
Held, that this was a bona fide claim of right, and that R. should be relieved
of the order for fine and imprisonment.
Motion, made at the February Sittings of the Full Court,
to make absolute an order calhng upon Charles Richard Haly,
Pohce Magistrate at Dalby, and James Clarke of Dalby, to show
cause why the conviction of William Rawlings, under the 26th
section of The Injuries to Property Act of 1865 (29 Vic, No. 5),
should not be quashed on the grounds : (1) That there was no
evidence to support the conviction. (2) That the evidence showed
that the defendant acted under a bona fide claim of right. (3)
That the said Charles Richard Haly had no jurisdiction to try
or decide the matter of the said complaint, as defendant raised a
bona fide claim of title in himself as against the complainant to
the fence alleged to have been destroyed, and to the land upon
which the same was situate, and the conviction involved a decision
as to such title.
CRIMINAL EEPORTS, 1860-1907. 235
Perske, for appellant, moved the rule absolute. Hawlings v. Hali
AND ANOTHEU.
Wilson, for respondent Clarke, appeared to show cause.
Wilson took a preliminary objection that defendant had not
exhausted all his remedies. The conviction was under s. 26 of
The Injuries to Property Act, and remedy was by way of appeal to
the District Court, as provided by s. 71. On the merits, he
contended the question of title was for the justices as a matter
of fact. The justices have decided that it is not a bona fide claim
of right, and the Court AviU not interfere. He referred to Reg. v.
Walker, 4 Vic. Rep., (L.) 452 ; Reg. v. Blackburn, 32 L.J. (M.C.) 41,
46 ; Paley v. Birch, 16 Law Times Rep. 410 ; and Stone on Justices
of the Peace, p. 72.
Perske referred to Paley on Convictions, p. 144. " Whenever
the title to property is in question, the exercise of a summary
jurisdiction by justices of the peace is ousted." He quoted in
support Reg. v. Burnaby, 2 Ld. Ray., 900 ; Reg. v. Huntsworth,
33 L.J. (M.C.) 131 ; and Reg. v. Cridland, 27 L.J. (M.C.) 31.
Decision was reserved ; prisoner meanwhile being allowed
out on bail, himself in £40, and two sureties in £20 each, or one
surety in £40, with condition that prisoner surrender himself
into custody if rule discharged. Recognizance to be taken before
any justice of the peace.
At the March Sittings of the Full Court, the following judgment
was delivered : —
LiLLEY C.J. : This is an appUcation to quash a conviction Lilley C.J.
against one WiUiam Rawlings, under the statute against the
maUcious destruction of property. The charge against him was
that he destroyed maliciously a quantity of fencing, the property
of the complainant, one James Clarke, and the Magistrates
convicted him, and ordered him to be imprisoned, in default of
payment of a fine of £10, for three months. He was imprisoned,
and at last Court the Court gave him bail. Therefore, if he has
suffered, it has been from his own obstinacy, not from the action
of the Courts. The ground on which the rule is sought — and it
was raised at the trial — is, that Clarke alleged that he had a bona
fide claim of right. The circumstances are somewhat remarkable.
It appears that the fence which Clarke was charged with destroy-
ing stood between two properties which belonged to the defendant.
There was a dispute whether the fence stood upon his own land or
upon the other piece of land which he had agreed to sell to the
236 QUEENSLAND JUSTICE OF THE PEACE.
Bawlings u. Halt complainant Clarke. It appears that there had been transactions
■ between them of this kind. There is no doubt that there was
Lilley C.J. a contract in which the defendant agreed to sell to Clarke a piece
of land adjoining his own. Part of the purchase money was
paid to E-awlings, the defendant, and then there was a dispute
as to certain of the terms. Clarke said he was entitled to take
away a crop of potatoes from the allotment which he had sold.
The defendant said he was entitled to take away the improve-
ments. It is clear that on the day for the completion of the
contract, by the payment of the full amount, the purchaser Clarke
was a defaulter. Then Rawlings began to remove the wire from
the fence, and that is the offence with which he was charged before
the Magistrates. He set up the claim that he was entitled to
take it away as part of the improvements, and the evidence
was taken on which the Magistrate decided that it was not a
bona fide claim of right. Beyond the fact of his attempt to remove
the fence, there was no evidence of any want of bona fides, and
on the other hand the admitted matters — the non-payment
of the purchase money, the right to move a crop of potatoes,
and other little circumstances — all went to show that there was
between the parties matter of dispute, and the question is, if I
may use a familiar term, was this a mere bogus assertion, or was
it a bona fide claim and assertion of his right to the improvements ?
What object could he have ? What could he secure by these
proceedings ? If the contract was " off " entirely by reason of
Clarke's default, there was nothing to be gained by the removal
of the fence. If, on the other hand, the property was still within
the grasp of Clarke, and he could assert his right under the con-
tract under which he was admittedly a. defaulter, he had half the
purchase money, and might have recouped himself for any injury
in consequence of Rawlings taking the wire from the fences.
Upon the whole we think it ought to have been held by the Magis
trate there was a bona fide claim of right, and that this man should
be relieved of the order for fine and imprisonment. The con-
viction will, therefore, be quashed, vnth costs against Clarke.
Harding J. Haeding J. and Real J. concurred.
Eeal.L
Rule absolute accordingly, with costs.
Sohcitor for appellant : E. Winter.
Solicitors for respondents : Wilson, Newman-Wilson <fe
Hemming.
CRIMINAL REPORTS, 1860-1907.
237
[Brisbane Criminal Sittings.]
REGINA V. HORROCKS.
[4 Q.L.J. 218.— Note.— Sec. 64 of 31 Vic, No. 13, is repealed, see now s. 10 of
Criminal Law Amendment Act of 1894 (58 Vic, No. 23). which is not identical
with the repealed section.]
Criminal law — Evidence — Untrue representation — Evidence and 1892.
Discovery Act of 1867 (31 Vic, No. 13), s. 64:— Burden of ^^th^^ust.
proof. Harding J.
H. was arrested on a charge of murder. He asked the arresting constable, B.,
whether human blood could be distinguished from any other blood. B. said
" Yes, it could."
Held, that the representation was untrue, and any confession or statement
made by the prisoner subsequent to such representation could not be admitted
in evidence against the prisoner. A detective untruly told the prisoner the
nvurderer could be identified.
Held, that no conversation with the prisoner subsequent to such representation
could be received under s. 64 of The Evidence and Discovery Act. The onus is
on the Crown of rebutting the presumption that the subsequent statements of
the prisoner were induced by the representation.
Information against Francis C. Horrocks for murder.
Power prosecuted for the Crown. Lilley and GonlanYSox the
prisoner.
On the first day of the trial Detective Grimshaw gave a con-
versation with the prisoner, which was received. He then
deposed that he told the prisoner " the murderer can be identified."
This being an untrue representation, further conversation was
rejected. On a later day of the trial, Boyle, the arresting constable,
deposed that, before the arrival of Detective Grimshaw, the
prisoner and he had a conversation ; that the prisoner asked
him, " Can they distinguish human blood from any other blood ? "
and he answered " Yefe."
Lilley objected to the reception of any subsequent conversation
on the ground that this was an untrue representation.
Harding J. upheld the objection pending an answer from a
scientific witness.
Harding J.
288
QUEENSLAND JUSTICE OP THE PEACE.
Begina v.
bobbocks.
Harding J.
Robert Mar, the Government Analyst, deposed in answer to
a question from Harding J. : "If the question as asked — Can
they distinguish human blood from any other blood '! -yes, is
not a true answer according to the present state of science."'
It was in evidence that Boyle's untrue representation preceded
the statements of the former to Detective Grimshaw.
lAlley thereupon moved that so much of the evidence already
given as went to prove a confession made by the prisoner after
the above statement made by Boyle, should be struck out
from the Judge's notes on the grounds that there was a false
statement amounting to a representation, and that, therefore,
any confession after that must be deemed to have been induced
by it, unless evidence to the contrary existed, and there was no
evidence. Evidence and Discovery Act, s. 64.
Power : There is nothing to show that the subsequent state-
ments were induced by Boyle's statement.
Harding J. : It would be well if all constables and others in
control of a prisoner would give the statutory caution to him
upon taking him over from another's charge. This is especially
necessary here, as s. 64 of The Evidence and Discovery Act is
peculiar to Queensland. I hold that such evidence must be
struck out as occurring subsequent to an untrue representation,
and that the onus is thrown on the Crown of rebutting the pre-
sumption that the subsequent statements of the prisoner were
induced by the representation.
Solicitor for prisoner : E. W. Goertz.
[Brisbane Criminal Sittings.]
REGINA V. FRANZ.
]892.
1st September.
Harding J.
[4 Q.L.J. 219.— Note.— 50 Vic, No. 14, s. 3, is repealed, see now s. 656 of Criminal
Code.]
The Offenders Probation Act of 1886 (50 Vic, No. 14), s. 3— Two
informations presented simultaneously — Previous conviction.
Two informations were presented against F. for cattle stealing. F. pleaded guilty
to both, and asked the extension of The Offeiiders Probation Act. He was sentenced
CRIMINAL REPORTS, 1860-1907.
239
to eighteen months' hard labour on each information, the sentence being bus- Eegi.na u. Fbanz.
pended on the first.
Held, that as he was convicted under the first charge, the benefit of the Act
could not be extended to the offence 6ontained in the second information.
Information against Franz for cattle stealing.
Power prosecuted ; Rutledge, for prisoner.
Two informations were presented against the prisoner for
cattle stealing. He pleaded guilty to both.
Rutledge called evidence of character and asked that the
prisoner might have the benefit of The Offenders Probation Act.
The prisoner had not been previously convicted.
Harding J. : Here are two informations. If he is sentenced
on the first he is convicted, and how can I extend the benefit of
that Act to him on the second. Sentence — eighteen months'
imprisonment with hard labour on the first information, to be
suspended upon prisoner entering into his own recognizance in
£80 before a Justice of the Peace, under the terms of The Offenders
Probation Act ; eighteen months' imprisonment with hard labour
upon the second information.
Solicitors for prisoner : Atthow, Bell <& Stumm.
Harding J
[Fttll Court.]
REGINA V. DUNCAN.
[4 Q.L.J. 219. — Note.— 29 Vic, No. 6, s. 77, is repealed, see now ss. 398, S75, and
581 of Criminal Code. As to time at which point may be raised, see s. 668
of Criminal Code. Case referred to in R. v. Hamilton (9 Q.L.J. 251, post).]
Crown case reserved — Embezzlement — Larceny— General verdict —
29 Vic, No. 6, s. 77.
A prisoner was charged with embezzlement, the facts showed a case of larceny,
the jury brought in «, general verdict of guilty, and the prisoner was sentenced ;
but the sentence was suspended at the request of the prisoner's counsel to reserve
the question.
1893.
September.
LUley Q.J.
Harding J.
Cooper J.
Chubb J.
Real J.
240 QUEENSLAND JUSTICE OF THE PEACE.
Eegina v. Duncan Edd, that the qviestion might be raised at any time before sentence, that the
conviction must be reversed, the judgment vacated, and bail released.
Beg. V. Gorbutt, Dears & B. 168, followed.
Ceown Case Reserved, stated by Mr. District Court Judge
Noel.
The prisoner was charged at Townsville on an information for
embezzlement. The Judge directed a case of larceny. The jury
brought in a general verdict of guilty.
Macnaughton, for prisoner, submitted the proceedings should
be quashed. The prisoner was sentenced, but the sentence sus-
pended pending the decision of the question raised by Mr.
Macnaughton.
Power, for the Crown, referred to s. 77 of The Larceny Act of
1865, where, on an information for embezzlement, a prisoner may
be found guilty of simple larceny, or larceny as a servant,
[LiLLEY C.J. : That means a special verdict is required.] There
is a similar case, Reg. v. Gorbutt, 26 L.J. (M.C.) 47. The only
question is whether the objection was too late. [Real J. : How
was it too late ? It could not have been made before the verdict.]
The prisoner's counsel might have asked the Judge to so direct the
jury.
Harding J. : We have decided that a point may be taken at
any time during the trial, in Reg. v. Pieremont, 2 Q.L.J. 95, so long
as the prisoner has not been removed.
Lilley, for prisoner, was not called upon.
Lilley C.J. LiLLEY C.J. : Verdict was tantamount to finding the prisoner
guilty of embezzlement. The facts amounted to larceny. The
conviction must be reversed, the judgment vacated, the prisoner
discharged, if in custody, otherwise the bail to be released.
HardinR J.
Cooper J. Harding, Coopeb, Chubb, and Real JJ. concurred.
Chubb J.
Eeal J. Solicitors for prisoner : Powers & Robinson, agents for O'Malley,
Townsville.
CRIMINAL REPOETS, 1860-1907. 241
[Full Court.]
Be The Extradition Acts, 1870 and 1873, In re CARLO PEDRO.
[5 Q.I1.J. 22. — Note. — §ee also Commonwealth Extradition Act (No. 12 of 1903).
Case followed in R. v. Friday, 11 Q.L.J. 26, post.]
Extradition — Habeas Corpus — 33 and 34 Vict., c. 52, ss. 9, 10, 11 — 1893.
Evidence — Eight of prisoner to be heard — Return. February.
A fugitive convict was brought before a police magistrate in Brisbane for an ex-
tradition order. The prisoner was undergoing sentence for a crime committed in
Queensland. A warder from New Caledonia demanded his extradition for an offence
alleged to have been committed in France, and for which he had been sentenced.
The order for committal was made. An application for habeas corpus \7as then
granted on the ground that the prisoner was not given a chance of defence, and
could have disputed his identity.
Held, on the return to the habeas copiis, that the prisoner could not be detained
on the conviction under The Extradition Act, but must be remanded to custody
under the warrant mentioned in the amended return to the writ. The Court can
go behind the return and review the police magistrate's decision.
In re Castioni, 1891, 1 Q.B. 149, followed.
Reg. V. Hiistin, 1 Q.L.J. 16, discussed.
Motion for the release of a prisoner on a writ of habeas corpus
directing the keeper of Her Majesty's gaol at Brisbane to bring up
the body of Carlo Pedro, a prisoner in custody under a warrant
made under The Extradition Act. The habeas corpus was granted
on the grounds (1) that the prisoner had no opportunity of getting
legal advice ; (2) that he did not answer to the description which
had been suppUed ; (3) that he was not the fugitive criminal
whose extradition was demanded by the French authorities.
The prisoner had been arrested in Queensland and sentenced
to seven years' imprisonment for robbery. A French warder
from New Caledonia appUed for the extradition of the prisoner,
as being a man who had been sentenced to imprisonment for life
for theft and murder in France in 1878. The prisoner was brought
up several times at the City Police Court, but the French oificial
was unable to identify him personally, but did so from a written
description of certain marks on the body of the prisoner. An
affidavit of a medical man, filed for the prisoner, showed there
were no such marks as alleged by the French authorities. The
poUce magistrate committed the prisoner. An appUcation for
habeas corpus was then granted as above. The prisoner was
produced, and the return read and referred to the Full Court by
Harding J.
242
QUEENSLAND JUSTICE OF THE PEACE.
Be The Extra-
dition Acts, 1870
and 1873, In re
Carlo Pedro.
Harding J.
G. W. Power, for the Crown.
Harding J. : In England it is usual to refer cases like these to
the Secretary of State for the Colonies,. and as His Excellency the
Governor is his representative here, I have caused communica-
tion to be made to the Colonial Secretary, and expect that it wiU
by that means come to His Excellency's knowledge.
Power : The question whether the prisoner had a right to give
evidence on his own behalf did not arise. Clarke on Extradition,
3rd edition, 214.
[Real J. : I think the prisoner ought to have had an oppor-
tunity of being heard. He had only to bare his breast to show
that the marks with which it was sought to prove his identity
were not there.]
The question of identity in extradition is only necessary in
criminal cases, but where extradition of a prisoner under sentence
is asked for, it is only necessary to make out a case before magis-
trates.
[Real J. : The whole question to my mind is whether by the
law of England you can convict a man without his being heard.]
The evidence as to identity is very strong. There is no right
to go behind the return. In re Keogh, 15 V.L.R. 395.
[Harding J. referred to In re Castioni, 1891, 1 Q.B. 149.]
Re Guerin, 58 L.J. (M.C.) 45, foot note ; Reg. v. Hustin, 1
Q.L.J. 16. If the Court has power to send the case back to the
magistrates they might try the questions of fact on the affidavits,
or send it to a jury.
Harding J. deUvered the judgment of the Court : —
This is a matter adjourned from my chambers to this Court,
in consequence of my having felt myself hampered by a decision
of Mr. Justice Pring in the case of The Queen v. Hiistin, 1 Q.L.J.,
p. 16, in which His Honour decided that, upon a habeas corjms
the Court, or at least he sitting as the Court, would not go behind
the return, the return being of a similar nature to that in this
case. Before me in Chambers the prisoner was represented by a
solicitor or legal practitioner, but before this Court he has not
been represented, and the Court has given such assistance as it is
able to give, and I think, before we finally deliver judgment,
although we have done all on his behalf that we could have
done if we had been his counsel, that he should be asked
CRIMINAL REPORTS, 1860-1907. 243
if he has anything to say on his own behalf. Prisoner, do you j^j^oJ' ^cf "^ 1870
desire to be heard further ? [The Warder : Prisoner has not and 1873, la re
got anything to say, your Honour, except that he is not the ^^"^^ ^■"'*''-
man.] As it stands now, a writ of habeas corpus was issued for Harding J.
the production of this prisoner, and for the return of the authority
for his detention. He has been produced, and the return has been
read. It is under a warrant under The Extradition Acts, and also
under a warrant by this Court sitting in its criminal jurisdiction.
It is only as to the present ground that we have to deal with him.
As to the present ground it appears that he was originally brought
before the PoUce Magistrate of North Brisbane, and that the
proceedings there have apparently been regular up to a certain
point ; that is to say, the case against him was entered on, and
evidence to convict him was tendered — and possibly sufficient
evidence, if uncontradicted — but at this stage, instead of pro-
ceeding as in an ordinary inquiry before a Magistrate, the prisoner
was at once committed. Now there is a maxim of law, " Audi
alteram partem," which is always upheld, and has been conse-
quently upheld by this Court, which is to the effect that wherever
anjrthing in the nature of judicial proceedings is going on,
each party in those proceedings must be heard before an adjudica-
tion can be made against him. Here he was not in the usual
way asked if he had anything to say or any evidence to give, but
the conviction was entered at once. That we consider to be
WTong, and, consequently, if this was a proceeding for a writ of
certiorari, the adjudication could have been quashed. We have
now to see whether, the proceedings here being of habeas corpus,
a man can be held under a conviction which would be quashed
on another proceeding. The sections of the Act necessary to be
referred to are The Extradition Act, 1870 (33 & 34 Vict., c. 52),
ss. 9, 10, and 11, " when a fugitive criminal is brought before a
police magistrate, the police- magistrate shall hear the case in the
same maimer and have the same jurisdiction and powers, as near
as may be, as if the prisoner were brought before him charged
with an indictable offence committed in England." Section 10
enacts that " in the case of a fugitive criminal accused of an
extradition crime, if the foreign warrant authorizing the arrest
of such criminal is duly authenticated, and such evidence is
produced as would, according to the law of England, justify the
committal for trial of the prisoner, if the crime of which he is
accused had been committed in England, the police magistrate
shall commit him to prison, but otherwise shall order him to be
244
QUEENSLAND JUSTICE OF THE PEACE.
He The Extra-
dition Acts, 1870
and 1873, In re
Carlo Phdbo.
Harding J.
discharged." The second paragraph states, " In the case of a.
fugitive criminal alleged to have been convicted of an extradition
crime, if such evidence is produced as would, according to the
law of England, prove that the prisoner was convicted of such
crime, the police magistrate shall commit him to prison, but
otherwise shall order him to be discharged." Before I read s. 11
I wiU say a word or two on that s. 10. On that section there are
two sets of cases provided for. The one case is that of a fugitive
convict ; the other is that of a fugitive accused or suspected
person. Now, with regard to the fugitive suspected person,
consider what are the proceedings in this country with regard
to an accused. He is brought before the magistrate for the
purpose of committal for trial, and upon the production of evidence
which raises such a case as to induce the magistrate to think
that he ought to be committed for trial, then the magistrates'
are to commit him. They have not to weigh the evidence and
say whether the man is guilty or not guilty, but to come to the
conclusion that such a suspicion is aroused that the justice of the
case can only be satisfied by a trial. Upon that case there would
arise the legal existence of the crime, and the fact that the party
before them was the party who committed the crime. Now, as to
each of these there would be an issue — has such a crime been
committed ? Is the man that stands in the dock the man that
committed that crime ? And the jury in the Criminal Court, if
the Court were sitting in its criminal jurisdiction, would decide
both questions. Secondly, if prima facie evidence were brought
before the magistrates that such a crime had been committed,
and that the man before them was the man — it does not matter
whether there is conflicting evidence or not, for that is beyond the
magistrates' power to adjudicate upon — they have got to send it
on to the further Court. Those are the cases which are provided
for in the first part of s. 10, so that the paragraph from Clarke on
Extradition, which was read, would appear to have very Uttle
application to them. And then there is another class of cases which
come before the magistrates, more commonly called summary
justices, where the magistrate is judge and jury on the case, and
decides it, inflicting punishment as the result. In these cases
each side must necessarily be heard, and that is what ought to-
have occurred in this case. But that is not what has occurred,
in this case. The case before us now is one of a fugitive convict
brought before the magistrate for an extradition order, and
the magistrate has proceeded as if it were a fugitive accused
CRIMINAL REPOETS, 1860-1907.
245
brought before him. But it is not necessary to say that even in
that case the magistrates would be right, for I doubt in my own
mind whether even on that he ought not to have heard what there
was, because he might have produced evidence so conclusive
that there might not be any answer to it. But that need not be
dwelt upon. Then we come to the 11th section, which says " If
the police magistrate commits a fugitive criminal to prison,
he shall inform such criminal that he will not be surrendered
until after the expiration of fifteen days, and that he has a right
to apply for a writ of habeas corpus. ... If a writ of habeas
corpus is issued after the decision of the Court upon the return
to the writ, it shall be lawful for a Secretary of State, by warrant
under his hand and seal, to order the fugitive criminal (if not
delivered on the decision of the Court) to be surrendered." Now,
reading this 11th section, it seems impossible to conceive its
meaning to be to give him a right to apply for a habeas corpus
within fifteen days, unless something can be done on that habeas
corpus, because, if on that habeas corpus a return has to be made,
and the magistrate has committed, it would be simple justice to
remand him, and the benefit given him by the 11th section would
seem to be a nulUty ; but if, on the other hand, something can be
done on the return of that habeas corpus, then the 11th section is
intelligible and the remedy a useful one. Now, on that section,
there have been decisions quoted. One of them is in a note to
In re Ouerin, 58 L.J. (M.C.), p. 45, " A prisoner also obtained an
order for a habeas corpus on the ground that he was a British
subject. The Court held that it was competent for them to
review the magistrate's decision on that point, and, as the affidavits
were of a conflicting character, ordered an issue to be tried before
a jury to determine this question. The issue was tried on the
21st December, before Baron Huddleston and a common jury,
and the prisoner was ordered to be delivered to the French
authorities." And then there is a case of Re Castioni in L.R.,
1891, 1 Q.B. 149, and there the Judges went into this point at
considerable-, length.- The' judgment of Mr. Justice Denman
bears upon the subject, and I quote from p. 157 of that judgment.
He went into both of these sections at length. " It was at first
contended, in opposition to the application for a habeas corpus,
that if the magistrate upon this question once made up his mind
the Court had no jurisdiction to deal with it. It appears to me
that this proposition cannot' be maintained on the very face of
the Act itself, which requires by s. 11 that the magistrate shall
Re The Extra-
dition Acts, 1870
and 1873, /» re
Cablo Pedbo.
Harding J.
246 QUEENSLAND JUSTICE OP THE PEACE.
Se The Extra- inform the prisoner that he may apply for a habeas corpus, and
^^nd 181 3, 'in re if he is entitled to apply for a habeas corpus, I think it follows
Caklo Pedbo. ^iia,t this Court must have power to go into the whole matter,
Harding J. and in some cases certainly, if there be fresh evidence, or perhaps
upon the same evidence, might take a different view of the matter
from that taken by the magistrate." Then Mr. Justice
Haivkins deUvered judgment, and at p. 161 says : " Now, the
matter has been before the magistrate, and the magistrate acting
upon the information and the evidence before him, has come
to the conclusion that two things exist. First of all, that there
is abundance of evidence to justify him in committing the man
to be tried for murder — that is to say, there would have been
had this crime been committed in this country ; and, secondly,
he has come to the conclusion, rightly or wrongly, on which I
will have a word or two to say, that the offence was not of a
political character, and that, therefore, he ought to be given up.
The matter now comes before us — I will not say to review the
whole of his decision — but to ask ourselves whether or not, having
regard to the whole of the circumstances which are brought to our
attention, and which are proved by the depositions and other
evidence in the case, we come to the same conclusion as the
magistrates, or whether we deliberately arrive at an opposite
conclusion. Now, it seems to me to be impossible to say,^ for
the reasons which were stated in the course of the argument,
that if a man has a right to move for a habeas corpus in order that
the case may be reviewed, or for the purpose of getting his dis-
charge, he might not enter into matters which showed he had
been guilty of no offence at all ; and I should have said that by
no means was the matter concluded by the magistrate's decision
that he be committed for trial, because the magistrate does not
sit, when he is committing for trial, as a magistrate sitting finally
to dispose of the case and to give judgment upon it ; but he states
his opinion that there is a prima facie case, and on that ground he
signs his warrant of committal. Again, with reference to the
question of whether the magistrate has a right to deal with a
man and to deal with his objection of being committed for trial
for an extradition crime, I entertain no doubt that the magistrate
has no right and no jurisdiction to find finally, as against the
prisoner, whether or not he has committed that crime which he is
charged with having committed, or whether that crime is one of a
political character. I desire to call attention to certain pro-
visions in The Extradition Act. First, by s. 3, a fugitive criminal
CEIMINAL EEPORTS, 1860-1907.
247
shall not be siirrendered if the offence in respect of which his sur-
render is demanded is one of a political character, such as treason
or other matters ; or, if he proves to the satisfaction of the police
magistrate that the requisition for his surrender has, in fact, been
made with a view to try him for an offence of a political character.
These latter words undoubtedly tend to show that Sir Charles
Russell was wrong in the view that he took that the onus is upon
those who seek for the extradition to show that the offence com-
mitted is not of a poUtical character, because it must be upon
the person who seeks to be discharged on the ground that his
surrender is, in fact, asked for with a view to punish him for an
offence of a political character ; the onus of estabhshing that
is upon the alleged criminal himself. Now, s. 9 and s. 10 seem to
me to have some bearing on the question as to whether or not
the offence of which a man is charged is of a poUtical character.
First of all, the ninth section enacts that " When a fugitive
criminal is brought before a police magistrate, the poUce magis-
trate shall hear the case in the same manner, and have the same
jurisdiction and powers, as near as may be, as if the prisoner were
brought before him charged with an indictable offence committed
in England." If he were charged before a magistrate with an
indictable offence committed in England, the question of whether
or not the offence for which he was indicted were of a political
character or not would make no difference. But under this
section the magistrate is to deal with him as though the offence
charged were an indictable offence committed in England. Then
the section goes on to say : " The poHce magistrate shall not
adjudge that the offence is of a political character, but he shall
receive any evidence which may be tendered to show that the
crime of which the prisoner is accused, or alleged to have been
convicted, is an offence of a political character, or is not " an
extradition crime." It seems to me that the language of this
part of the ninth section in itself shows that the onus is on the
person who seeks to absolve or exonerate himself from the liability
to be handed over to the Government of the territory within which
the crime was committed. I find here, in furtherance of what
I have to say about this question of the jurisdiction of the magis-
trate, s. 10, which is, to my mind, by no means unimportant :
" In the case of a fugitive criminal accused of an extradition crime,
if the foreign warrant authorising the arrest of such criminal is
duly authenticated, and such evidence is produced as (subject
to the provisions of this Act) would, according to the law of
Re The Extra-
dition Acts, 1870
and 1873, In re
Carlo Pedbo.
Harding J.
248
QUEENSLAND JUSTICE OF THE PEACE.
Be The Extra-
dition Acts, 1870
and ] 873, In re
Carlo Pedbo.
Harding J.
England, justify the committal for trial of the prisoner if the
crime of which he is accused has been committed in England, the
police magistrate shall commit him to prison ; but otherwise
shall order him to be discharged." It does not seem to give
the magistrate himself the power of dealing with the matter
other than this : he is to consider whether the crime is one which,
if committed in England, would have made it imperative upon him
in discharging his duty to commit the man to prison. If so,
he is to commit him to prison, but he is, as I have already shown
by s. 9, obliged to receive any evidence which may be tendered
to show that the crime is of a political character, and that is
analogous to the provisions in Russell Owrney's Act (30 & 31
Vict., c. 35), which makes it the duty of a magistrate, if a prisoner
wishes to call evidence in support of his defence which he intends
to set up when he comes to be indicted, to take that evidence and
hand it over to the tribunal before whom the prisoner is ultimately
to appear. In furtherance of this view that I take, I read the
11th section : " If a police magistrate- commits a fugitive criminal
to prison, he shall inform such criminal that he shall not be
surrendered until after the expiration of fifteen days, and that
he has a right to apply for a writ of habeas corpus," which may very
well mean this : "I have power to commit you to prison because
I am satisfied that you have been guilty of a crime to which the
extradition law and treaty apply ; you have a right to have any
evidence taken on your behalf to show that you are a criminal
who ought not to be sent out because your offence, even if com-
mitted, was of a political character. I wiU take the evidence for
you. You have fifteen days to make application for your release
if you think fit to move for a habeas corpus." What follows
afterwards shows that it is not the magistrate who is to determine
these matters, but it is the Home Secretary who is to determine
whether or not ultimately the prisoner is to be sent abroad, because
the second part of the 11th section goes on to say : " Upon the
expiration of the said fifteen days, or if a writ of habeas corpus
is issued after the decision of the Court upon the return to the
writ, as the case may be, or after such further period as may be
allowed by a Secretary of State, it shall be lawful for a Secretary
of State, by warrant under his hand and seal, to order the fugitive
criminal (if not delivered on the decision of the Court) to be sur-
rendered to such person as may, in his opinion, be duly authorised
to receive the fugitive criminal." These are the provisions of the
Actj and they are quite sufficient to satisfy me that the magis-
CEIMINAL REPOETS, 1860-1907.
249
Re The Extra -
CiKLO Pedbo.
Harding J.
trate's decision is by no means binding, either in point, of law ^^■jq
or in point of fact, and that when these matters come to be and 1873, In re
considered upon the habeas corptis, if the Judges have to consider
the case, they must consider the case as it is before them at the
time the rule is discussed ; and I think that, in considering the
matter, though we pay respect to the magistrate's view, we are
not bound to follow it at the expense of the criminal if, upon the
whole state of things before us, we come to the conclusion either
that the crime has not been committed, and that there is no
prima facie evidence of it, or that the criminal ought not be sent
out to his own Government for the purpose of being dealt with
by reason of his oflEence being, though a crime, a crime of a
poUtical character." I have no doubt that that is good law.
The authorities collected in Paley on Extraditions, 7th Ed.,
p. 346, lay it down very clearly that, on a conviction that would
be quashed if brought before the Court in another form of pro-
ceedings, the prisoner cannot be detained. I am perfectly satis-
fied that on another form of proceeding this conviction would
not stand, but would be quashed. Consequently, the prisoner
•cannot be detained on this conviction, but he must be remanded
to his present keeping under an amended return of the writ. To
make it more clear, he is to be discharged from the warrant issued
on the conviction under The Extradition Act, and he is to be
remanded to custody under the warrant which is mentioned in
the amended return to the writ. My brother Judges concur,
.and that is the judgment of the Court.
Solicitor for prisoner : Price.
iSohcitor for Crown : J. Howard Gill.
[FuLi. Court.]
BRITCHER V. WILLIAMS AND OTHERS.
(5 Q.L.J. 39.— Note.— Sec. 27 ol the Brands Act ol 1872 is repealed, see now s. 447
ol Criminal Code. As to causing act to be done, see-now s. 7 of Criminal
Code.]
Brands Act of 1872, s. 27— Admission of evidence of previous
convictions — Practice — Costs.
Two snmmonses were issued against B , at the Cbarleville Police Court, for
wilfully branding with his registered brand two calves of which he was alleged not
1893.
April.
Griffith C.J.
Harding J.
Chubh J.
Bcal J.
250
QUEENSLAND JUSTICE OF THE PEACE.
Bkitchee v.
Williams and
Otheeb.
to be the rightful owner. By consent both summonses were heard as for one
offence only. Evidence was given of previous convictions for illegally branding,
but that, as to branding, did not show that B. had himself branded either of the
calves, and he was convicted and fined £40 and costs.
Held, on a motion to quash the conviction, that as the evidence of previous
convictions had not been objected to before its admission, the conviction was not
bad on that ground, but that the conviction must be quashed on the ground that
the evidence did not show B. to be guilty of the offence charged. The evidence
showed that he was present and caused the branding to be done.
The rule was made absolute, with costs against the Crown.
Motion for a rule absolute to quash a conviction or order made
by John Vivian WUUams, Police Magistrate, and John Armstrong,
Junior, at the Charleville Police Court, on the 3rd day of
February, 1893, on a complaint wherein Herbert Hart was com'
plainant, and Henry Samuel Britcher defendant, on the iollowing
grounds : — (1) Wrongful admission of evidence of previous
convictions ; (2) that the evidence did not show the defendant
to be guilty of the offence charged ; and (3) that there was no
evidence to support the conviction.
Bannatyne, for Britcher ; Byrnes A.G. and Feez, for the con-
victing magistrates, and (at a later stage) for the Crown, to
show cause.
Bannatyne : The evidence showed that the branding was
done by a servant of B., assisted by his two sons. Evidence was
admitted of previous convictions. In a criminal case, oiily
evidence material to the issue can be allowed — Beg. v. Gibson,
18 Q.B.D. 537. The Bench allowed the sergeant of police to
state that there had been two previous convictions, and that, in
the first case, the defendant had been fined £10, and the second
£20.
[Geiffith C.J. : We are all agreed that it was not admissible
evidence if it was objected to.]
[Haeding J. : It has been laid down over and over again that
a Judge of this Court must not allow a prisoner to be convicted
on improper evidence, and that it is the Judge's duty throughout
the trial to protect the prisoner from improper evidence.]
[Geiffith C.J. : Can you show that in a case of summary
conviction before justices any conviction must fail if evidence
is admitted which is inadmissible ?]
^ submit that is so. There is a conflict of evidence as to
whether the evidence was objected to.
CRIMINAL REPORTS, 1860-1907.
251
[Griffith C.J. : Is there any case where a conviction has Bkitoheb «.
not been sustained where the objection as to admissibihty of Otheks.
evidence is made for the first time after the conviction ?]
I do not know of any.
[Griffith C.J. : Neither do I. In common law, if you give
imsound reasons for the admissibility, of evidence, and the Judge
admits it, you cannot afterwards upset the decision 071 that
point.]
As to the third objection. Ex parte Hop Sing, 4 N.S.W.,
W.N., 59, was cited.
Byrnes A.G. : The appellant was only nineteen yards away
from where the branding took place. He was practically present
and employed an innocent person to do an illegal act. The defen-
dant admitted in cross-examination that he had been twice
convicted. No objection was taken to the evidence-in-chief
at the time. The police magistrate has made an affidavit to that
effect.
Bannatyne, in reply, submitted there was no evidence that the
appellant was so close to the man actually doing the branding
that he was actually engaged in the work himself.
Griffith C.J. : This is a motion to quash a conviction against Griffith C.J.
Henry Samuel Britcher for illegally branding two calves, on the
grounds (1) that evidence of previous convictions was wrongfully
admitted ; (2) that the evidence did not show the defendant to
be guilty of the offence charged ; and (3) that there was no evidence
to support the conviction. As to the wrongful admission of
evidence, affidavits have been filed that no objection was made
at the time. I beheve that was the case, and on that ground the
appeal fails. If justices are to be held responsible for the ad-
mission of evidence, and if a conviction is not to hold good when
evidence is wrongfully admitted without an objection being
made at the time, an intolerable burden will be imposed on
magistrates. Another objection is that the offence of which the
defendant has been convicted is different from the one with which
he has been charged. The defendant was charged with branding,
and the evidence clearly showed that he caused and directed
the branding to be done. The real question is whether under the
circumstances he was properly charged with branding. It is not
necessary that a man should actually do the branding himself
to become a principal. If he were in the yard and saw the brand-
252
QUEENSLAND JUSTICE OP THE PEACE.
Br.ITCHEB V.
Williams and
Othees.
Griffith C J.
Harding J.
Chubb J.
Eeal J.
Griffith C.J.
ing done, he is quite as much a principal. No alteration has heen
made in the charge preferred against the defendant, and on that
ground I think the order must be made absolute and the con-
viction quashed. Costs were asked against the Crown, but I
do not think they should be granted.
Harding J. : I think the rule should be made absolute and the
conviction quashed on the second ground, but I do not express
any opinion at present with regard to the first ground of the
appeal. The Crown has joined in the fight and supported the
complaint, they must bear the penalty and will have to pay the
costs.
Chubb and Real JJ. concurred.
Griffith C.J. : I hold the opinion that the Crown ought never
to pay costs in criminal or quasi-criminal cases ; but perhaps
I am prejudiced on account of having been so long a Crown Law
Officer.
Rule absolute with costs against the Crown.
Solicitors for appellant : Bouchard <fc Holland.
Solicitor for respondent : J. Howard Gill.
1894.
October.
CooperJ,
CImbb J.
[Northern Full Court.]
SMITH V. O'BYRNE, Ex parte O'BYRNE.
[5 Q.L.J. 126.— Note.— See now s. 280 of Criminal Code. See also Spatkes v.
Martin (2 Q.J.P.R. 12), Armat v. Little (3 Q.J.P.R. 21, 1909, S.B.Q. 83.)]
Assault — Schoolmaster — Punishment of pupil — Excessive violence.
A schoolmaster may punish for school offences, but if he exceeds the bounds of
moderation eiliher»in the- manner, instrument, or quantity of the punishment, he is
answerable for the excess.
The authority and position of a schoolmaster explained.
Motion calling upon E. J. Hennessy, John T. H. Bowden, and
G. Massey, of Thursday Island, to show cause why a conviction
or order made against Mary O'Byrne for a common assault upon
one Stella Anne Smyth, whereby the said Mary O'Byrne was fined
one penny, should not be quashed, on the ground that there was
no evidence of excess either in the manner, instrument, or quantity
of punishment inflicted, and why the said Mary O'Byrne should
not recover the costs of the application.
CEIMINA.L EEPOETS, 1860-1907. 25S
The facts appear in the judgment of Chubb J. Smith v. o;Bybne
^^ •" ° Ex parte O'BYRHii
Macnaughton, for the appellant, moved the rule absolute.
The punishment was not excessive. Archbold's Criminal Practice,
723. The Court will review the finding of the justices. Neighbour
V. Moore, 4 Q.L.J. 145.
Jameson, for the justices, asked to be heard on the question
of costs, as the magistrates had been brought into Court.
Cooper J. : You cannot have costs. My opinion is now, as Cooper J.
it was when I granted the rule nisi, that there was absolutely
no evidence before the magistrates that there was excess in the
force of the application of the instrument, or that an improper
instrument had been used in the punishment of the child. That
being so, the rule must be made absolute, with costs against the
respondent and not against the magistrates.
Chtjbb J. : As this is a matter of some importance, I have Chubb J.
taken the opportunity since the papers have been in my possession
to look into the authorities, and it may be useful to schoolmasters
and others to know the law on such matters. A schoolmaster
may, in respect of school offences, misbehaviour, disobedience,
idleness, and the like, lawfully inflict moderate and reasonable
corporal chastisement, commensurate with the ofiPence, upon a
scholar capable of appreciating the punishment. If, however,
he exceeds the bounds of moderation, either in the manner, the
instrument, or the quantity of the punishment, the excessive
violence is unlawful, and he is answerable to the law for that
excess. The authorities for this doctrine will be found in 1
Hawk. P.C, c. 60, s. 23 ; Bac Ab. (Assault and Battery) ; 1
Hale, P.C, 473, 474 ; 1 East P.C, 406 ; Com. Dig. Pleader
(3 M., 19) ; Stephen's Crim. Dig. (Art. 201) ; 1 Buss. Cr., 4th
Ed., 751, 1026 ; B. v. Miles, 6 Jur. 243 ; R. v. Hopley, 2 F. & F.,
202 ; B. V. Griffin, 11 Cox CC, 402 ; and Fitzgerald v. Northcote, 4
F. & F., 656. In Year Book, 7 Ed. IV., the position of the school-
master is put as that of temporary guardian. In Year Book, 21
Ed. IV., fo. 6, p. 12, there is a case of assault and battery by an
apprentice against his master, in which appears a qucere — " if a
schoolmaster can justify {i.e., beating a scholar), for it is not
prejudice to him if the scholar will not take learning." Whether
this qucere is the observation of the Judge or an addition of the
reporter does not appear clearly. The remark seems foohsh, and
the reason trivial. In B. v. Hopley, 2 F. & F., 202, where a
schoolmaster was indicted for the manslaughter of a scholar, a
254 QUEENSLAND JUSTICE OF THE PEACE.
Smith D. 0|Byene ^^^j g^gg(j thirteen, by excessive beating with a thick stick,
xpait^ -JENE Q^gjj|^yj,j^ Q j_ directed the jury as follows : "By the law of
Chubb J. England a parent or a schoolmaster (who for this purpose repre-
sents the parent and has the parental authority delegated to
him) may, for the purpose of correcting what is evil in the child,
inflict moderate and reasonable corporal punishment, always,
however, with this condition — that it is moderate and reasonable.
If it be administered for the gratification of passion or of rage,
or if it be immoderate or excessive in its nature or degree, or if it
be protracted beyond the child's powers of endurance, or with
an instrument unfitted for the purpose and calculated to produce
danger to life and limb, in all such cases the punishment is exces-
sive, the violence is unlawful, and if evil consequences to Ufa
or limb issue, then the person inflicting it is answerable to the
law." In a subsequent case, Fitzgerald v. Northcote, 4 F. & P.,
()56, the same learned Judge says : " The authority of the school-
master is, while it exists, the same as that of the parent. A
parent, when he places his child with a schoolmaster, delegates
to him all his own authority, so far as it is necessary for the weKare
of the child." In both these oases, it may be noticed in passing,
the scholars were boarders ; and in B. v. Hopley the master, before
inflicting the punishment, had written to the boy's father pro-
posing to give the boy a severe beating, and had received the
father's assent thereto. In this case the appellant, the head
mistress of the primary school at Thursday Island, punished, in
open school, a girl day scholar, aged nine years, for continued
neglect of home lessons, after previous warning and punishment.
The punishment consisted of four strokes of a cane, described in the
evidence as of about the thickness of a boy's little finger. Two
of the strokes were on the right hand, one on the left, and the
fourth on the left forearm, two inches above the wrist. It is
apparently this last stroke that is complained of — the cau^a
teterrima belli. A medical expert, Dr. Salter, who saw the injury
on the same day and shortly after it was afflicted, deposed that
there was a slightly raised mark above the wrist, that he did not
think the child would suffer from it, and that it was nothing
serious, but that it might have led to a serious injury as regards
muscular action, and that in his opinion (in which I quite agree)
■' on the wrist is not a fit place to cane a child." The evidence
of the child and her juvenile brother was that she had her hand
out perfectly still — leading to the inference that the blow on the
wrist was intentional. If this were so, and the justices on reason-
CRIMINAL REPORTS, 1860-1907. 255
able evidence came to that opinion, and also to the opinion that Smith -j. O'Bybne
,1 TIT o ■ , , , . „ , Ex paric O'Bybne
there had been an excess of violence, then their finding on the
facts ought not to be disturbed by this Court, and the conviction Chubb J.
ought to be sustained. Then was there any reasonable evidence
of an unlawful battery ? The act of correction was lawful in
itself. It could only become unlawful by and in respect of an
excess. To make it an offence punishable by the criminal law
the battery must have been intentional as well as excessive. If,
therefore, the stroke on the wrist was unintentional and happened
by misadventure, or was caused by the child's own fault, then it
was no battery. There is no necessity to cite authorities for this
elementary proposition. Now the evidence of the appellant and
three of the school children was that the stroke on the wrist was
occasioned by the child swerving her hand as the cane descended.
Looking at the whole of the evidence and to the fact that there
was no evidence of anger or improper feeling shown by the
appellant, or of cruelty either by use of an improper instrument
for punishment or by the infliction of an excessive number of
strokes, I, as a judge of fact, would have been prepared to accept
the appellant's version of the affair as the true one, not only on
the weight of evidence, but because I cannot bring myself to the
belief that the appellant deliberately and cruelly struck intention-
ally at the child's wrist. The three justices, however, who heard
the case have come to that conclusion, necessarily disbelieving
the appellant's story, and declining to accept her explanation.
Then, with regard to the injury itself, it was stated to be " nothing
serious " — the child did not cease attending school in consequence
— and that it was of the most trifling character is indicated by
the fine of the penny inflicted by the justices. I may say, how-
ever, that I do not for a moment doubt that the justices came to
that conclusion in perfect good faith. Now this Court will
review the finding of justices, even upon the facts where it appears
that they have, in our opinion, taken an unreasonable view of
the evidence, and. the interests of justice require it. Neighbour
V. Moore, 4 Q.L.J. 145, p. 14, per Lilley C.J. I have no hesita-
tion in saying that I can myself see nothing to justify the infliction
of even the nominal fine imposed on the appellant. In my
opinion the correction was lawful — it was moderate, reasonable,
and inflicted with a proper instrument. There was no excess,
as the blow on the wrist was, I think, a misadventure, and in any
case, was of no serious consequence. The justices should, there-
fore, I think, have dismissed the complaint. The conviction
256 QUEENSLAND JUSTICE OF THE PEACE.
Smith v. 0|Bybne therefore must be quashed, and the fine and costs paid by the
*^'"_!_ ^ ''"^ appellant returned to her. Costs against the respondent. No
Chubb J. pQgtg against the magistrates.
Solicitors for appellant : Roberts <k Leu.
Solicitor for magistrates : T. G. Fraser, Crown Solicitor.
1894.
Fehrvary.
[Full Coubt.]
REGINA V. JACK.
Q.L.J. 60. — Note. — 29 Vic, No. 13, ss. 48, 51, are repealed, see now s. 668 of
Criminal Code. Instead ol Order XXXI., r. 4, ol Crown Rules, see now Criminal
Practice Rules, 0. IX., r. 3, Wilson & Graham's Code, p. 398. 55 Vic, No. 24,
s. 4, is repealed, see now s. 212 of Criminal Code. Compare also s. 584 of
Criminal Code.]
Criminal Practice Act of 1865 (29 Vic, No. 13), ss. 48, 51—0.
XXXI., r. 4 — Appeal — Criminal Law Amendment Act of 1891
Griffith G.J. (55 yic.^ No. 24), s. 4 — Limitation of time — Arrest.
Harding J.
Seal J. As a general rule, a Crown Case Eeserved for the opinion of the Supreme Court
will not be heard unless the papers are delivered to the Judges four clear days
before the hearing, as prescribed by the Order XXXI., r. 4 (Grown Rules).
When a man is apprehended on a charge of an oHence the nature of which is
such that upon an information charging him with it he might be convicted of the
offence with which he is actually charged in the information, that apprehension is
a commencement of the prosecution for the latter offence.
On a charge of an offence under s. 4 of The Criminal Law Amendment Act of
1891, proof by parol that the prisoner was apprehended on a charge, then stated to
him, of rape on the same person, held sufficient evidence of the commencement of
the prosecution.
JR. V. Phillips (E. & E. 369) explained.
Case stated for the opinion of the Court by Miller D.C.J.
The prisoner, an aboriginal, was tried at the Criminal Sittings
of the District Court, at Rockhampton, on 9th January last, on
a charge of attempted rape on a girl aged 4J years. At the close
of the evidence, which went to show that the offence was com-
mitted on 9th November, Mr. Lilley, who appeared for the prisoner,
asked the judge to direct the jury to bring in a verdict of not
guilty, on the ground that there was no evidence that the prose-
cution was commenced within two months of the commission of
the offence. His Honour, in stating the case, said that the only
evidence of the commencement of the prosecution was that of
CRIMINAL REPORTS, 1860-1907. 257
the arresting constable, who deposed that he arrested the prisoner Bbqika v. Jack.
on the 9th November on a charge of rape committed on the girl.
No warrant or information was used in the initiatory proceedings,
or produced or tendered in Court. At the Crown Prosecutor's
request, His Honour allowed the case to go to the jury, and
reserved the point for the Full Court. Prisoner was convicted,
and His Honour remanded him for sentence until the next sittings
of the District Court in Rockhampton, and in the meantime
committed him to prison, allowing him bail if he could obtain it.
The points for the consideration of the Court were : (1) Is it
necessary for the Crown to prove in an offence under The Criminal
Law Amendment Act of 1891 that the prosecution was commenced
within two months after the commission of the offence ? (2) Was
the evidence of the arresting constable sufficient to prove the date
of the commencement of the prosecution ?
Byrnes A.G., and King for the Crown.
Lilley for the prisoner.
Griffith C.J. pointed out that the papers had not been de-
livered four days before the sitting of the Court.
Lilley : I understand the jiidge who tried the case has been
away on circuit, and the preparation of the case delayed. I ask
the Court to waive the rule in this instance.
Griffith C.J. : Order 31, rule 4, provides that when a question
is reserved by a Court of Criminal Jurisdiction for the Supreme
Court the case is to be delivered to the Registrar, and that the
Registrar, or if the question was reserved on the application of
the prisoner's counsel, the prisoner, must cause office copies of the
case to be delivered to the Judges and to each party four days at
least before the case is to be heard. The object of the rule, of
course, is that in a matter involving the liberty of the subject
the Judges may have an opportunity of reading the case at their
leisure, and considering the points for decision before the argu-
ment. That being so, the rule ought to be observed unless satis-
factory reason is given for the default in the delivery of the copies.
In the present case the papers came direct from the Judge, and it
is to be presumed that he used all expedition in the matter, and
in any case the parties ought not to suffer for any want of ex-
pedition on the part of the Judge. As the question involves the
liberty of the subject, I think we ought to hear the case, but it
should be understood that as an ordinary rule cases will not be
258 QUEENSLAND JUSTICE OF THE PEACE.
Eeoina V, Jack, heard unless the papers are delivered to the Judges four clear
days before the case comes on for hearing.
Lilley submitted that there was no evidence of the date on
which the prisoner was first brought before the justices. He was
arrested on a charge of rape, and there was no evidence that the
prosecution was commenced until 9th January, when an informa-
tion was presented in the District Court for an attempted rape.
The arrest is not the commencement of the prosecution. R. v.
Phillips, R. & R. 369 ; R. v. Parker, 33 L.J. (M.C.) 135. Laying
an information is the commencement of the prosecution. It is
not always necessary to have a %vritten information. S. 42 of
The Justices Act says proceedings are to be commenced by a
complaint. There was no evidence that the proceedings were
commenced in that way. In R. v. Hull, 2 F. & F. 16, it was held
that the issue of a warrant was not evidence of the commencement
of the prosecution. R. v. Brooks, 2 C. & K. 402 ; 1 East, P.O.,
186. The arrest was simply the detention of the person for the
safety of the pubUc. The prosecution commenced with the pro-
ceedings in Court.
King contended that the oims was on the prisoner to prove
that the prosecution had not been properly initiated. The Crown
Prosecutors must be presumed to have performed their duties
properly until the contrary was proved.
[Griffith C.J. : I am not acquainted with any such rule.]
The arrest is a step in the prosecution, and consequently the
prosecution was commenced within the time prescribed by the Act.
Lilley in reply : The arrest might be a step in the prosecution,
but it is no part of it. Austin v. Dowling, L.R. 5 C.P. 534.
" ' ■ Gkiffith C.J. : The prisoner was charged, under the 4th sec-
tion of Th^ Criminal Law Amendment Act of 1891, with attempting
to commit an ofience upon a girl under the age of 12 years. That
section provides that any prosecution for any offence under it
must be commenced within two months after the commission of
the offence. It was contended by Mr. King that the onus was
on the prisoner to show that the prosecution had been begun after
the two months, but all the cases referred to were to the contrary
effect. The general principle laid down is that the information
must disclose the committal of an offence within the cognisance
of the Court both as to time and place. It appears, however,
that under such statutes it is not necessary to allege in the inform-
ation the date of the commencement of the prosecution, but it
CKIMINAL REPORTS, 1860-1907.
259
also appears that when an objection has been taken that the
prosecution had not been commenced within the prescribed time,
•effect has been given to it. The evidence as to the commencement
■of the prosecution in this case is this : — Within six days after the
offence was committed, the prisoner was arrested by a constable,
who informed him that it was for an offence, which he described
as rape, upon the child on whom the offence was committed. It
was suggested that the offence, of which he was ultimately con-
victed, was not that on which he was arrested, but that difference
•does not constitute any objection if the prosecution was com-
menced within the prescribed time. It may be taken, therefore,
that if the arrest of the prisoner on that charge was the com-
mencement of the prosecution for the offence of which he was
■convicted, the prosecution was commenced in sufficient time.
The contention for the prisoner was substantially that a prosecu-
tion must be commenced by laying a complaint before a justice,
and that the apprehension of a prisoner on a charge communicated
to him by the constable is no evidence of a previous complaint
before a justice, nor of itself a commencement of the prosecution,
nor a step in the prosecution. If that proposition were sustained,
the conviction would have to be quashed. Consider the object
■of the statute. The offence is one which is easily charged, and
substantial proof of which is soon lost, and it has often been said
that it is hard to disprove. The object of this provision is to
prevent stale charges, and to make the prosecution follow as soon
as possible on the commission of the offence. What, then, is the
meaning of " the commencement of the prosecution " ? If we
are bound by any decisions to hold that the term " prosecution "
is a term of art having a technical meaning, we must follow those
decisions. But the cases that have been cited do not appear to
me to lay down any strict or technical interpretation of the term
" prosecution." The earliest case was that in East's Pleas of the,
■Grown. Then came the case of R. v. Phillips in Russell and Ryan.
In the days when those cases were heard there was no Court for
dealing with Crown cases reserved, but it was the practice for the
judges to consult together and to make a recommendation to the
■Secretary for State if they thought that a conviction should not
be upheld. The words " commencement of the prosecution,"
used in the Queensland Act, are words often used in old statutes,
and in construing their meaning regard must be had to what was
the law about the commencement of prosecutions in those days.
In 2 Hale's Pleas of the Grown, p. 72, it is said : " Touching their
Reoima v. Jack.
Griffith O.J.
260
QUEENSLAND JUSTICE OF THE PEACE.
Begina v. Jack.
Griffith C.J.
Harding J.
Keal J.
arrests or apprehending them " (i.e., offenders), " this is the first
instance " (i.e., beginning) " of their prosecution." The olcJ
doctrine of hue and cry is an illustration of the fact that the
ordinary way in which a prosecution was commenced was by
apprehension of the offender. I think, then, that we may very
well understand that the Legislature when in the old statutes
they used the term " prosecution " used it with reference to what
was then understood to be the ordinary means of bringing an
offender to justice, and that we are not precluded from holding
that under this statute also the arrest was the beginning of th&
prosecution. That seems to be the oridnary meaning of the term,
and this construction appears to be supported by the older author-
ities. The case of B. v. Phillips, R. & R., 369, was relied on as
authority against this view. The marginal note of that case is,
" Proof by parol that the prisoner was apprehended for treason
respecting the coin within the three months will not be sufficient,
&c." On looking into the report itself, however, it appears that
the head-note is inaccurate. The prisoner was apprehended on
a charge of " high treason." At that time certain offences-
against the coinage law were made high treason by statute. All
that the Court decided was that evidence of apprehension upon a
charge of " high treason " generally was not sufficient evidence
that the prisoner was apprehended for the offence against the
coinage laws for which he was indicted. It appears in the present
case that within two months of the committal of the offence the
offender was arrested on the charge of rape on the same child. I
think that it was a fair inference that he remained in custody on
that charge until brought before the jury and convicted. It
seems to me, therefore, that there was sufficient evidence that
the prosecution was commenced, in the sense in which the term is
used in the statute, within the time prescribed. On the grounds
that I have stated, I think the conviction ought to be affirmed.
Habdikg and Real JJ. concurred.
Solicitors for prisoner : Chambers, Bruce <Ss McNab.
CRIMINAL REPORTS, 1860-1907.
261
[Full Court.]
REGINA V. MANGIN.
16 Q.L.J. 63.— Note.— 31 Vic, No. 13, s. 64, is repealed, see now s. 10 of Criminal
Law Amendment Act of 1894 (58 Vic, No. 23) not identical.]
Criminal law — Evidence and Discovery Act (31 Vic, No. 13),
s. 64 — Untrue representation — Confession.
M. was charged with having stolen certain gold, the property of the Mount
Morgan Company. G., a private detective, who had worked himself into M.'s
•confidence gave evidence that he told M. that he came from S. Africa, and had
done business in diamonds, where a fellow could make a little money if he were so
inclined. M. replied, "a man can make a little money here if he goes the right
way about it." G. then, by means of false statements, induced M., by promising
io participate in the gold robberies, to admit that he had in his possession some
gold scraped from the Company's retorts. The statements were admitted to be
false. The evidence was admitted, and the prisoner convicted.
Held, by Harding and Beal JJ. , that these representations being untrue, and
being made after the subject matter of the charge had been taken, all subsequent
material confessions of M. were inadmissible in evidence, as being induced by such
false statements, and that the conviction must be annulled.
Case stated for the consideration of the Court by Miller D.C.J.
The prisoner, Reuben Mangin, was tried in Rockhampton for
having on the lith September last, at Mount Morgan, stolen
loz. lOdwt. of gold, the property of the Mount Morgan Company,
and for having on the 20th of the same month, also at Mount
Morgan, stolen 18oz. of amalgam and 2 oz. 19 dwt. 18gr. of gold
belonging to the Company. He was convicted on both counts.
The principal witness against him was F. W. Gabriel, a private
•detective employed by the Company. Gabriel had lived at the
same hotel as the prisoner, and had by gradually working himself
into the prisoner's confidence gained sufficient evidence to
associate him with the gold steahng. In the course of the trial
he gave evidence, in which he stated that on the 7th September
lie had a conversation with Mangin, who asked him where he
■came from. By that time he was on familiar terms with Mangin.
Gabriel said that he came from South Africa, where he had been
■doing a little business among the diamonds, and where a fellow
could make a little money if he were so incHned. That statement
he said in the witness-box was untrue, inasmuch as he had done
business in diamonds, but not in South Africa. He continued
to say that Mangin repHed that—" A man can make a little
money here if he goes the right way about it," and described
how by representing himself to Mangin as a man who would
1894.
February.
Harding J.
Real J.
262 QUEENSLAND JUSTICE OP THE PEACE.
Regina v. Mangin participate in the gold robberies, he had induced him to admit that
some gold in Mangin's possession had actually been scraped out
of the retort at Mount Morgan. On Gabriel giving this evidence,
Mr. Lilley, who was appearing for the prisoner, submitted that
under the 64th section of The Evidence Act, the evidence was
inadmissible, inasmuch as the admissions from the prisoner were
induced by untrue representations. A note of the point was taken
by the Judge, and it was now brought under the notice of the
Court on the special case stated by His Honour.
Lilley, for the prisoner : Section 64 of The Evidence ani
Discovery Act is pecuhar to Queensland. The only decision on it
is R. V. Horrocks, 4 Q.L.J. 218. The representation was untrue,,
and admitted by Gabriel to have been made to secure the
prisoner's confidence. The ownership of the gold was not
properly proved. There was no evidence, apart from the con-
fessions, that the gold ^^as taken without the consent of the-
directors. R. v. Meehan, 8 S.C.R. (N.S.W.) 289 ; R. v. Thomfson
(1893), 2 Q.B., 12 ; R. v. Windsor, 4 F. & F. 361 ; Rex v. ParralL
4 C. & P. 570.
Byrnes A.6., Power and King, for the Crown : The section
does not apply to admissions made before there was any charge.
Gabriel was a private of&cer, not a person in authority. The
term " untrue representation " must be interpreted to mean
any misrepresentation in connection with the offence Avith which
the man is actually charged.
HardiDg J. Haeding J. : This is a case stated by the learned Judge who
presided in the criminal side of the District Court holden at Rook-
hampton on 16th January last. The prisoner, Reuben Mangiii,,
was on that day charged with the larceny of 1 oz. 10 dwt. of gold,
and the larceny of 18 oz. of amalgam and 2 oz.. 19 dwt. of gold,
said to be the property of the Mount Morgan Gold Mining Com-
pany Limited. The case shows that, unless by means of admis-
sions made by the prisoner, the case was not proved against him.
The point more particularly raised by this case is as to the untrue
statement which is said to have been made by Gabriel to the
prisoner before the taking of the goods alleged to have been stolen.
That statement was to the effect that he came from South Africa,
and that he had been there doing a little business among the
diamond fields. Now, nothing of the kind had ever occurred..
Mr. Lilley objected to that. It was subsequent to that that the
alleged confessions were made, upon which alone the conviction
CRIMINAL EEPORTS, 1860-1907. 263
can be sustained. The learned Judge states that there was no Kegina v. Mansin
evidence or confession made by the prisoner to Gabriel after the Harding J.
untrue representation rightly admissible. The case does not set
out other untrue statements made by Gabriel to the prisoner,
but it attaches as part of the case the notes of the evidence, and
from these there appears to have been a false statement made by
Gabriel to the prisoner material to a prosecution, subsequently
to that which took place with respect to the gold, which had been
then taken and was then in the possession of the prisoner. Now,
these facts being incorporated with the case, the second question
raised by the Judge — Was there any evidence that the property
was taken without the consent of the owners ? — arises. If that
part of the evidence is read into the case, then this question raises
that point — Was there any evidence that the property was taken
without the consent of the owners ? — because it is only by means
of confessions, after such false statements as I have indicated has
been made, that any such evidence was brought out at aU. So
that I think that the point is open to us without deciding whether
or no this statement about the diamonds so long before the occur-
rence could vitiate the matter, or be a good reason for reversing
the judgment. Now, certain misstatements, which I do not find
it necessary for a decision to point out, having been made by
Gabriel to the prisoner, a certain amount of confidence having been
estabhshed between the two, and arrangements having been made
between them that they should obtain substances which are
retortable into gold from the Company — that being the case,
and substances having been actually obtained by the prisoner,
this occurred :— On Wednesday, Gabriel says he saw Mangin
at the hotel : " I produced some notes. I went into his bedroom.
He showed me some pieces of what I took to be gold, which he
said he had obtained from the pipe of the retort. He put them
into a small box which I gave him. He also showed me a
pocket, which had been cut out of a pair of trousers, with
some amalgam in it, weighing about 18 oz. or 20 oz. I told
him he was getting some more gold. We then went into the
bar." " I told him I was getting some more gold " — a false state-
ment. " We went into the bar, and there met William Russell.
All three of us went into Mangin's bedroom. On the Avay to the
bedroom Mangin said, ' Are you sure Russell is aU right ? ' I said,
' Yes.' " That is not true. There is a further misstatement.
I think that after that, at all events, all statements made by the
prisoner were affected by those untrue representations. " After
264 QUEENSLAND JUSTICE OF THE PEACE.
Kegina v. Manoin this they went into the bedroom, and he (Mangin) produced a bag
Harding J containing amalgam, and asked Eussell to feel the weight of it."
There is a confession that he had in his possession amalgam.
" There was some conversation which I don't recollect. We went
into the bar and had a drink. Eussell left. Mangin then said
if I had been here two months ago we could have made a
couple of thousand pounds a month." There is another con-
fession, if the jury put a certain construction on it. Further
on we find he says : " Going through the bar we found a man
lying across the gateway named Joyce. He was drunk. I said,
' You can't have him here ; take him into Mangin's room.'
Mangin said, ' Do you think this fool is shadowing us ? ' " There
is another confession — that is, if the jury chose to draw a certain
conclusion from it. " I replied, ' It might be.' Mangin said,
' I will give you my swag to take care of to-night.' " There is
another confession. " I saw Mangin at Mills' Hotel on the
21st (Thursday), and he showed me a piece of metal which he said
was stuff taken from the retort." Then there is other evidence to
the same effect. As I have already said, that amounts to the
making of a representation by Gabriel pertinent to the matter after
the subject matter of the charge had been taken and the crime
committed and completed, whatever it was. That being so,
I think that the learned Judge below was right when he did not
think the evidence was admissible, but he admitted it on pressure
from the Crown, subject to a case to be reserved. I think the
evidence was wrongly admitted, and consequently that any
conviction which followed upon it was bad. The form of the
order should be that the judgment be annulled, and an entry be
made on the record and on the indictment that the prisoner
ought not, in the judgment of the Judges, to have been convicted
of the felony aforesaid.
Eeal J. Real J. ; I am of the same opinion. The whole of the state-
ments were made before any material admission had been obtained.
All the representations Avere made by Gabriel before he got one
very material admission — that he (Mangin) took it without the
consent of the directors. That is the last thing of all. He appears
to have held his hand until he got that admission out of him,
and immediately after he had got it he handed him over to the
pohce. That appears to have been on the 21st, on which day
Mangin told him he would have got more, but the directors were
there, and he could not get as much as he liked. The next morning
Gabriel gave him into custody. All the representations were
CRIMINAL REPORTS, 1860-1907.
205
made before he got that admission, and that is material evidence i^'^'ginau. Mangin
relied upon in the case, as showing the taking of the property Real J.
without the consent of the directors. We cannot see how far the
jury rehed upon that, but that alone would be sufficient to render
the conviction bad. For the same reasons as those given by my
brother Harding, I am of opinion that the judgment should be
annulled.
Haeding J. : Let the prisoner be discharged, and an entry
made on the record and on the indictment that the prisoner
ought not, in the judgment of the Judges, to have been convicted
of the felony aforesaid.
Solicitors : Chambers, Bruce dh McNab.
Harding J.
[Full Couet.]
REGINA V. BUNNEY.
[6 Q.L.J. 80.— Note.— See now s. 297 ot Criminal Code. Sec. 49 of Criminal
Piactice Act, 1865, Is repealed, see now s. 688 of Criminal Code. Offenders'
Probation Act of 1886 is repealed, see now s. 656 of Criminal Code.]
Crown case reserved — Manslaughter — Contributory negligence.
Where the death of a person is caused by the culpable negligence of the
prisoner, the fact that the deceased could have escaped by the exercise of
reasonable care is no answer to a charge of manslaughter.
Crown Case Reserved by His Honour the Chief Justice,
under s. 49 of The Criminal Practice Act, 1865.
The case stated that Frederick Bunney was tried at the Brisbane
■Criminal Sittings, held on the 12th March, on a charge of the
manslaughter of John Plastow. The alleged unlawful act or
omission causing death was culpable negligence in driving a
■spring cart along a public highway. It appeared from the evi-
dence that Plastow, who was an aged and somewhat infirm man,
. and who habitually walked with the aid of a stick, was run over
■on a clear, starlight night in the middle of the road by a spring-
cart which was being driven by the prisoner in the opposite
•direction to that in which Plastow was walking when last seen
■alive, a few minutes before the collision. There was sufficient
■evidence that Plastow' s death resulted from culpable negUgence
on the part of the prisoner. For the defence it was suggested that
1894.
April
Griffith G.J.
Chubb J.
Real J.
266 QUEENSLAND JUSTICE OF THE PEACE.
Eegina r. Bonnet the deceased was under the influence of Uquor, and had by his own
~ negUgence contributed to the injury which was the cause of death-
Evidence tendered to establish this defence was objected to by
the Crown Prosecutor, but admitted as being relevant to the
question of the degree of the prisoner's negligence, the learned
Judge stating that he would put a specific question to the jury
as to the existence of contributory negligence, of which there
was some slight evidence. Two questions were accordingly put
to the jury : — 1. Was Plastow's death caused by the culpable
negligence of the prisoner ? 2. Was there contributory neghgence
on Plastow's part ? both of which questions they answered in the
affirmative. - It was contended by the prisoner's counsel that
these findings amounted to a verdict of not guilty, but Griffith C.J.
directed the jury, following the cases of B. v. Swindall, 2 C. & K.,
230 ; R. y. Hutchinson, 9 Cox, 555 ; E. v. Jones, 11 Cox, 544;
and JR. v. Kew, 12 Cox, 355, that upon the findings they should
find the prisoner guilty, which they accordingly did. At the
request of the prisoner's counsel he reserved for the opinion of
the Supreme Court the question whether he ought to have directed
the jury to find a verdict of not guilty. The question for the
Court was whether he was right in directing the jury that on the
facts as found by them the prisoner was guilty of manslaughteir
or whether he ought to have directed a verdict of not guilty. His
Honour sentenced the prisoner to four months' imprisonment
in Brisbane Gaol, but suspended the execution of the sentence
under The Offenders' Probation Act of 1886, and prisoner had
been discharged from custody upon recognisances under the
provisions of that Act.
Sydes, for the prisoner, cited Beven on Negligence, 128 ; E. v.
Birchall, 4 F. & F., 1087 ; R. v. Hutchinson, 9 Cox, 555 ; R. v.
Mastin, 6 C & P., 396.
Power, for the Crown, was not called upon.
Chubb J. Chubb J. : In this case the prisoner was charged with the
manslaughter of one Plastow, and the manslaughter was alleged
and proved to have been caused by the culpable negligence of
the prisoner. Two questions were put to the jury on the point
raised by the prisoner's counsel as to whether contributory
negligence would be a defence to a charge of manslaughter by
negligence. The jury in answering the first question found that
the deceased's death was caused by the culpable negligence of the
prisoner. That would be sufficient, if it stood by itself, to support
CRIMINAL REPORTS, 1860-1907.
267
the case for the Crown. The second question asked was whether Eegina^.Bunney:
there was contributory negUgence on Plastow's part. The chTbb J.
difficulty which might perhaps have arisen on that question has
been disposed of by the admission made by Mr. Sydes, that this
question was to be understood to mean, and was so put to the jury
— was it possible by the exercise of reasonable care for the deceased
to have got out of the way ? If the jury had answered the
question in that form affimatively it would not have been an
answer. It would not be an answer in a civil case, and it certainly
would not be an answer in a criminal case. A definition of
contributory negligence will be found in Smith on the Law of
Negligence, at page 227 — " Contributory negligence in law is that
sort of negUgence which, being a cause of injury, is of such a
character that the defendant could not avoid the effects of it."
Then he goes on to say, " When the plaintiff has proved, according
to his evidence, that the act of the defendant has caused the injury
of which he complains, the defendant in his turn may prove
that the plaintiff, by his own act, contributed to cavise the injury,
and that the plaintiff might by the exercise of ordinary care have
avoided the consequences of the defendant's negligence. But
such proof is not of itself sufficient to destroy the plaintiff's claim,
and the defendant must go further and show that the plaintiff's
negligence was of such a character that the exercise of ordinary
care upon the defendant's part would not have prevented the
plaintiff's negligent act from causing the injury — that is the
sort of negligence ^^hich the law calls ' contributory negligence.' "
Now, in the case stated by the learned Chief Justice, it was stated
that there was sufficient evidence that Plastow's death resulted
from culpable negligence on the part of the prisoner. His Honour
further said there was some slight evidence as to the existence of
contributory negligence. That must be understood to mean
s Dme slight evidence that possibly deceased might have got out of
the way. As I have said before, that would not be an answer in a
ci^-il action, and it could not be taken to be an answer to an
information for causing the death by negligence of a fellow-creature.
It is possible, though I do not decide it now, that the defendant
would have been entitled to acquittal if he could have shown
that he could not have got out of the, way by the exercise of reason-
able care, but on the case as it stands I think the conviction was
right, and that the judgment ought to be affirmed.
Real J. : I am of the same opinion. I think that although it
may be that the contributory negligence which would free a man
Eeal X-
268 QUEENSLAND JUSTICE OP THE PEACE.
Begina i;. BuNNEY from civil liability would also free him from criminal liability,
Real J. that would be merely a coincidence. It would not free a man
from criminal liability simply because it freed him from civil
liability. In all the criminal cases cited by Mr. Sydes, except
one, the defence would not give protection in the Civil Court.
In the present case it was manifest that it was the negligence of
the prisoner that caused the injury, not the subsequent act of
negligence on the part of the deceased — as in the case of a man
stopping in front of a runaway engine. The injury there would
be due to the negligence of the deceased, because he would know
that it was out of the power of the engine-driver to stop the
engine, and still deliberately stopped in front of the engine.
In that case the jury would answer " no " to the question,
was the injury caused by the culpable negligence of the driver ?
The best test seems to be, was the injury or death caused by the
culpable negUgence of the prisoner. If it were, it seems to me
that the liability would be there. It seems to me also, as has been
pointed out by Mr. Justice Chubb, that, looking at the definition
that has been given in civil cases, the circumstances of this par-
ticular case were such that there would be no relief from civil
liability. All that was alleged in this case was that the deceased,
had he been vigilant or had he been watchful, would have been
able to see something which would have enabled him to get out
of the way ; but, as I understood counsel, it was proved, and it
was relied on, to show that deceased was negligent, that he was
in the habit of walking looking down, and it was also alleged that
he was in a state which would preclude him from exercising that
observation. That being so, it is perfectly clear that the second
part of the definition with regard to civil liability would not have
been applied to that. It might be that he was guilty of negUgence
in placing himself in that state, but that was not an act of neglig-
ence causing death or injury whatsoever had prisoner taken
ordinary care. So that even if the definition of negligence which
Mould involve criminal liability is to be taken to be precisely the
same as that which involves civil liability, there would still be no
relief of liability in this case, and the conviction would have to be
affirmed. Of course I do not say whether it is or is not the same.
It seems to me that if it is the same it is only a coincidence, and
criminal liability is not to be measured by the civil liability,
although it might possibly be that the two ran precisely in the
same lines on some occasions.
-Griffith C.J. Griffith G.J. : I am of the same opinion. An attempt was
CRIMINAL REPORTS, 1860-1907.
2G9
made at the trial to set up that the rules relating to civil actions BbQ'na t). BnuNEY
for negUgence appUed to a prosecution for manslaughter. In Griffith C.J.
deciding, as I did, I followed the authorities, which, with one
exception, and that only the dictum of a very learned Judge,
were all to the contrary. I am of opinion that the principles
which would excuse the defendant in an action for negligence are
not the principles which should apply in considering whether the
prisoner was guilty of manslaughter. I entirely agree with Mr.
Justice Real that, though it might sometimes happen that a man
would be free from both criminal and civil liability, it by no means
follows that he would be free from criminal liabiUty because he
was free from civil responsibility. I am of opinion that the ques-
tion of contributory neghgence was entirely irrelevant, and that
the real question to be tried by the jury was — was the death
caused by the culpable negligence of the prisoner ? In consider-
ing that, I thought that the evidence relied upon as showing
contributory neghgence was admissible, though irrelevant as
raising a substantive defence in respect of negUgence. I think
that that is perhaps not the best term to be used, but I used it as
the term employed in the cases cited. I think a better word
might be used, if it were necessary to leave the question to the
jury, but apparently it was not necessary to do so. The con-
viction will be affirmed.
SoUcitor : J. B. Price.
[Full Cottet.]
REGINA V. HOUSTON.
[6 Q.L.J. 145.— Note.— 54 Vic, No. 5, is repealed, see now s. 1 of Code, definition
of " clerli or servant," and ss. 568 (1) and 641 of Code. 36 Vie., No. 8, s. 1,
is repealed, see now s. 396 of Criminal Code. As to sentence on Crown Case
Reserved, see now s. 668 of Criminal Code.]
Crown case reserved — Embezzlement — General deficiency — 54 Vic,
No. 5—36 Vic, No. 8, s. 1 — Respite of sentence.
A member and paid secretary of an Oddfellows' Lodge may be convicted of
embezzling sums of money, the property of the lodge.
On a-oharge of embezzling specific sums, evidence of a general deficiency in the
accounts is admissible.
SemUe, that, when a prisoner is convicted, and a case reserved fov the opinion
1894.
itigust.
Griffith C.J.
Harding J.
Real J.
270
QUEENSLAND JUSTICE OP THE PEACE.
Kegina v. o£ the Full Court, the sentence should either be respited or bail allowed until
Houston. judgment is given.
Crown Case Resbeved by Noel D.C.J, for the opinion of the
Court on certain points raised in the course of the trial of Robert
James Houston, at Cooktown, on 1st June last. Prisoner was a
member, and the paid secretary, of the Loyal Captain Cook
Oddfellows' Lodge, Cooktown. He was charged in three separate
counts with embezzling specific sums of money, the property of the
lodge. He was tried, found guilty, and sentenced to three years'
penal servitude. The questions submitted to the Court were
whether the Judge was right in admitting in re-examination
evidence as to a general deficiency in the accounts, the prisoner
being charged with the embezzlement of specific sums ; and
whether, being a member of the lodge, the prisoner could be
convicted of embezzlement of its funds.
Harding J. pointed out that authority was given in the Act
to either respite or postpone sentence pending an appeal. That
power had not been exercised in this case, and it seemed to him
that if the same course was always followed a man might be made
to serve a sentence when the point to be decided was whether he
was guilty or not.
Dickson for the Crown.
■Griffith C.J. Griffith C.J. : The first point raised in the case is whether
evidence of a general deficiency is admissible on a charge of
embezzling a specific sum. In this case evidence of a general
deficiency ^vas tendered in the examination-in-chief and rejected
by the learned Judge, btit afterwards admitted in re-examination.
Whether, if the evidence had been properly rejected in chief, it
could under the circumstances have been admitted in re-examina-
tion is a matter on which I express no opinion. But I know of
no authority for holding that evidence of a general deficiency is
not admissible in chief on a charge of embezzlement. I do not
know of any authority to that effect, even before The. Act of
1890 ; and since that Act it is quite clear that a man may be
■convicted on evidence of a general deficiency. The other point
is, that prisoner, being a member of the lodge, could not be
convicted of embezzlement of the funds. That is expressly met
by The Act of 1872, which provides that a person who, being
one of two or more beneficial owners of money, steals it, may be
convicted as if he had not been a beneficial owner. And that has
been held to apply to the case of a secretary of a joint stock com-
CRIMINAL REPORTS, 1860-1907.
271
pany although he himself is one of the directors of the company.
Both the points that have been raised on behalf of the prisoner
therefore fail. The case has not followed the rules in stating
whether the sentence was respited. The sentence was three
years' penal servitude, but it would appear that the Judge gave
the prisoner the option of obtaining bail, and authorised him to be
-admitted to bail. Prisoner was, however, unable to get bail.
If the case had followed the rules, no difficulty would have arisen
on this point. I do not, however, think it necessary to express
any opinion whether the Judge was bound either to respite the
■sentence or to postpone execution of it. I think that in most
■cases the Judge should do so, if not in all. If the case had
precisely followed the rules, it would have, I think, been un-
necessary to say anjiihing on the subject. The conviction ought
to be upheld.
Harding J. : I am of the same opinion. With regard to the
question of respiting judgment, I think that, when a Crown
■case is reserved under The Criminal Practice Act, s. 48, the Judge
should either respite the execution of the judgment or allow
the prisoner to go out on bail ; and if bail is not procurable, then
he should be respited in such a manner that he should not undergo
any part of his punishment. The question does not directly
arise, and when it does arise, it will probably be in very different
proceedings from this. That is my opinion ; and that is the
course which should be followed.
Real J. : I am of the same opinion. I desire to express no
opinion on the necessity of the Judge respiting or postponing
sontence, except to say that in ordinary circumstances I feel it
-would be quite proper to do so. Whether it would be bad if the
Judge did not do so, I express no opinion.
Conviction affirmed.
Eeqina v.
HODSTON.
Griffith C.J.
Harding J.
Real J.
272
QUEENSLAND JUSTICE OF THE PEACE.
1894.
August.
Griffith C.J.
Harding J.
Real J.
[Full Coukt.]
REGINA V. ROYLE.
[6 Q.Ii.J. 146.— Note.— 29 Vic, No. 6, s. 76, is repealed, see now s. 1 of CriminaE
Code, definition of " money," and ss. 566 (5), 568 (1), and 641 of Criminal
Code.]
Larceny Act of 1865 (29 Vic, No. 6), s. 76— Embezzlement-
Si Vic, No. 5, s. 1.
When an offence under s. 76 of The Larceny Act of 1865 relates to a valuable
security, it is sufficient to allege the embezzlement to be of money without
specifying any valuable security; and the allegation, so far as it relates to a,
valuable security, will be proved if the ofiender is proved to have embezzled any
amount or part of the particular valuable security.
It is not necessary to prove that the deficiency unaccounted for did not consist
entirely of securities where the sum is made up of money and securities.
Since 54 Vic, No. 5, it is immaterial that more three separate sums wer&
included in the deficiency.
B. V. Keena, L.B. 1 C.C.R. 113, discussed.
Cbown Case Resekved by Paul D.C.J.
A. W. Royle was employed as cashier and accountant by
Prosser, Taylor & Co. His duties as cashier were to receive-
all moneys, cheques, drafts, &c., paid to the firm, and deposit the-
same in the bank to the firm's account. His duty as accountant
was to keep the books, and especially the general cash-book,
bank deposit book, and demand orders deposit book, and to maker
proper entries in them of receipts and deposits. A Mr. DeightorL
was also in the employ of the firm as assistant book-keeper, and
his duty was, under prisoner's directions, to write up the general
cash-book from the rough cash-book, which contained entries of the
receipts of all moneys received by the firm from day to day.
The employees had authority to receive money in the warehouse-
for the firm in the way of business, such as for cash sales, &c., and
their duty was to make entries of such payments in the rough
cash-book and hand the money to the prisoner as cashier,
Deighton received money as well as cheques, &c., in this way,,
and he always handed the same to the prisoner, and so handed
him money, cheques, &c., in April last and during previous months..
The entries of amounts received in the general cash-book for the
month of April were in Deighton's handwriting, except three
which were written by the prisoner, but all the entries in that
book of deposits made in the bank for that month were wTitten
l)y the prisoner. In addition to the entries of receipts in the
CRIMINAL REPOETS, 1860-1907. 273
general cash-book, taken by Deighton from the rough cash-book, Eeoina v. Eoyle.
he also received items for entry from the prisoner, but where the
prisoner obtained them Deighton did not know. Mr. Horstmann,
who was the auditor for the firm, discovered, on examining the
books in May last, and especially the general cash-book, that
there appeared, according to that book, a general deficiency in
the month of April of £794 4s. 6d., and that the short deposits
commenced in November last. The general cash-book for that
month showed £8,444 18s. lOd. as received, and £7,650 as de-
posited, showing a deficit of £794 4s. 6d. The larger proportion
of the entries of the amounts purporting to have been received
according to the general cash-book, not only in April but for other
previous months, would. His Honour said, consist of money
orders, cheques, and drafts, but all were entered as cash in the
cash-books. Mr. Horstmann could not discover from the books
the individual or specific items of which the deficit was composed,
or discover any specific amount received by the prisoner during
April or any previous month as not having been deposited ; but
the deficit comprised more than three items, and he (Mr. Horst-
mann) beheved comprised about thirty or forty items. The
prisoner had charge of the cash-box, and after he left the firm,
on the 28th May, it was opened, and found to contain £2 lis. lid.
cash and an I.O.U. of one of the employees for £11 10s. After
this date Mr. CoUedge, manager of the firm, saw the prisoner,
and asked him if he could account for the deficiency in the books
being nearly £800. The prisoner said he knew it was something
Uke that, but that he could not account for it, nor did he benefit
by it. Mr. Rutledge, prisoner's counsel, at the close of the case
for the prosecution, asked His Honour to direct the jury to find
a verdict of " Not guilty." His Honour refused to do that,
but asked the jury to answer two questions as well as to deliver
their verdict. The jury found the prisoner guilty, and answered
the two questions in the affirmative— (1) Was the amount of the
general deficiency stolen and fraudulently embezzled by the
prisoner ? (2) Did that amount consist of money as well as
cheques and other securities ? The points which His Honour
reserved at Mr. Rutledge's request were : (1) That there was no
case to go to the jury, inasmuch as s. 1 of the Act, 54 Vic, No. 5,
was Umited to money and did not provide for proof of the em-
bezzlement of money by evidence of a general deficiency in a case
where the sums, in respect of which a general deficiency of money
was alleged to arise, consisted partly of money and partly of
274
QUEENSLAND JUSTICE OP THE PEACE.
Griffith C.J.
Eegina 0. EoYLB. valuable securities, such as cheques, drafts, and orders for the
payment of money not shown to have been converted into money
by the prisoner. (2) That there was no evidence that any money
had been paid to or received by the prisoner. (3) That the evi-
dence showed that if any sums of money had been paid to and
received by the prisoner, more than three such sums were included
in the general deficiency. His Honour deferred passing sentence
until the Full Court had given a decision on the points reserved.
Dickson for the Crown ; Rutledge for prisoner.
Gkiffith C.J. : The prisoner was charged with embezzling
the sum of £794 from his employers ^ On his trial it was shown
that he was the cashier and accountant of his employers. His
duties are set out in the special case. The general cash-book
was intended to show all the money received by him. Entries ,
were made in it by clerks under his superintendence. The
book was not for the most part in his handwriting, but during
the month of April last there were three entries in his handwriting.
In the same book were entered statements of the amounts
deposited in the bank, which for the month of April were aU in his
handwriting. The books were kept under his supervision.
After he had left the firm's employ, and the books had been
examined, he was informed that there was a deficiency of nearly
£800. He said he knew it was something like that, but he could
not account for it, nor had he benefited by it. It had
been contended, though I doubt very much whether the
point is raised by the case, that there was no evidence
that he received any amount larger than was shown to have
been deposited in the bank. But I infer from the evidence
that, though the entries in the books were not all in the
prisoner's handwriting, they were all made with his cognisance
and knowledge, and therefore they operated as an admission
against him. I draw that inference from all the facts stated,
not as a necessary inference, but an inference which the jury
might draw from all the facts as stated. I quite agree that it is
not sufiicient to show that the books were kept under his general
superintendence. It must be shown that the entries were made
with his knowledge. If, therefore, that objection was intended
to be raised, which on the face of the case stated was doubtful,
I think it failed. Mr. Rutledge relied also on the case of R. v.
Keena, L.R., 1 C.C.R., 113. The 76th section of The Larceny
Act of 1865 provides, that, on an indictment for embezzlement,
" where the offence shall relate to any money or any valuable
CRIMINAL EEPORTS, 1860-1907. 275
security, it shall be sufficient to allege the embezzlement or I^^gina r. Boyle.
fraudulent application or disposition to be of money without Griffith C.J.
specifying any particular coin or valuable security ; and such
allegations, so far as regards the description of the property, shall
be sustained if the offender shall be proved to have embezzled
or fraudulently applied or disposed of any amount, although the
particular species of coin or valuable security of which such
amount was composed shall not be proved." The grammatical
construction of that section is, that, when the charge relates to a
valuable security, it is to be sufficient to allege the embezzlement
to be of money, without specifying any particular valuable
security; and the . allegation will be sustained if the offender is
proved to have embezzled any amount, although the particular coin
or valuable security of which it is composed is not proved. The
section was taken from the much earlier Act of 7 Geo. IV., Ch. 29,
which came under the notice of the Court in the case of E. v.
Grove, 1 Mood C.C., 447, a case which has often been cited in
cases of embezzlement sought to be proved by evidence of general
deficiency. The plain, Uteral meaning of the section is, that, in
charging a man with embezzlement from his employer, it is
enough to charge him with embezzUng money, although the
evidence might show that he took money or valuable
securities or both, the term valuable securities including,
by its definition, cheques and drafts and other securities.
On this section the point raised by the prisoner's counsel is, that
what was received by the prisoner consisted partly of cheques
and partly of money, and that it was not shown that what he
embezzled, or what he failed to account for, did not consist
entirely of cheques. It is quite possible that he paid into the
bank all the cash that he received, and that he made away only
with cheques. Apart from the statute, I should be very much
incUned to think that it would be open to the jury, upon its being
proved that a man received a large sum of money — using the word
money in the ordinary sense, as consisting of cheques, notes,
orders, and coin — and made away with a large part of it, to infer
that the part which he made away with consisted in part of cash.
But, assuming that that was not so, and that it must be taken
in favour of the prisoner that all he made away with consisted
of cheques, then, there being no evidence, although the jury
found that some of the deficiency consisted of money— there
being no distinct evidence that it did consist of money— Mr.
Eutledge reUed on Keena's Case. In that case the prisoner was
276 QUEENSLAND JUSTICE OP THE PEACE.
Besina v. Boyle, accused of embezzling £16. The evidence was, that he received
Griffith C.J. a cheque for £16 for his master, and gave a receipt for it. He
did not account for it, and went away. That was practically all
the evidence. It was said to have been held that a section
corresponding to s. 76 of our Larceny Act would not justify the
allegation of the embezzlement of money when it was only a.
cheque that had been embezzled, and there was no proof that the
prisoner had ever cashed it. This Court is not technically bound
by Keena's Case, but I think we ought to follow it unless there is
some strong reason to the contrary, so far as we can discover the
ratio decidendi. It may be that Lord Chief Justice Cockburn
and A. L. Smith J. thought that the Act referred only to cases
in which what was actually taken was taken in the form of
money. One at least of the learned Judges was of opinion that the
case against the prisoner failed otherwise. It appears to me
that no clear principle can be drawn from that case applicable
to such a case as the present, where the sum alleged to have been,
embezzled comprised a mixed fund, composed partly of cheques,
orders, &c. What the prisoner took was part of a mixed fund,
comprising cheques and money, and it appears to me that the
Act expressly says that it is sufficient to charge him with em-
bezzling money. It seems to me that this is exactly the case of
R. V. Balls, L.R., 1 C.C.R. 328, where a man, having to account
weekly for the money he received, accounted for £90 only and
kept £10. Not being able to discover any clear principle in S.
V. Keena, I do not think we are bound to apply it to the present
case. I think that the present case falls exactly within the
terms of the 76th section of The Larceny Act. The third point
raised was, that the evidence showed that if any sum had been
received there were more than three such sums included in the
general deficiency. That does not seem to be an objection,
especially in the face of the Act of 1890, which provides that, " on
the prosecution of any person for the larceny or embezzlement, as
a clerk or servant, of money, the property of his master, it shall
not be necessary to prove the larceny or embezzlement by him
of any specific sum of money, if there is proof of a general
deficiency on the examination of the books of account or entries
kept or made by him or otherwise, and the jury are satisfied that
the accused stole or fraudulently embezzled the deficient money
or any part thereof." On the grounds which I have stated, I
am of opinion that the conviction ought to be affirmed.
Harding J. Haeding J. : The prisoner's duty as cashier was to receive
CRIMINAL REPORTS, 1860—1907. 277
all moneys, cheques, drafts, &c., paid to the firm, and deposit ^^^^^''^ "■ ^°''^^-
the same in the bank to the firm's credit. As accountant, his Hardii;^ J
duty was to keep the books, one being the general cash-book.
Deighton was the assistant book-keeper under the prisoner's
direction. He received moneys, cheques, drafts, &c., and he
handed to the prisoner moneys and cheques received in April.
The prisoner made entries in the general cash-book. He also
made all the entries therein of the deposits made in the bank for
April. The general cash-book for April showed a general defici-
ency of £794 4s. 6d.— £8,444 18s. lOd. being shown as received,
and £7,650 14s. 4d. as deposited. It is further stated in the
case that the larger proportion of the amounts purporting to have
been received according to the general cash-book, not only in
April but in previous months, would consist of money orders,
cheques, and drafts, but were all entered as cash in the cash-book.
Prom this I deduce that some of the money, using the word
in its largest sense, being less than half of the £8,444 18s. lOd.,
consisted of actual money (coin), but it is not necessary to require
that so much as this, or so much as £794 4s. 6d., the amount
alleged to have been embezzled, should have been paid in actual
money (coin), the mere small sum handed by Deighton to the
prisoner being sufficient to support the information if proved
to have been received by the prisoner and embezzled by him.
But this actual proof is not required under The Larceny Act
Ar/iendment Act of 1890. Here we have a general deficiency,
on the examination of the books, which, with the evidence as
above, and the answers of the jury to the judge's second
question, showed that some money (coin) had been received by
the prisoner. From that the jury were justified in concluding
that money (coin) was embezzled. The prisoner might have
rebutted this, but he did not do so. The conviction must be
affirmed.
Real J. : To convict of embezzlement, it is necessary to Keal ,J.
prove that a man received money, using the word in the widest
sense, as comprehending cheques or other valuable securities,
and that it had been misapplied or fraudulently appropriated.
Those are the two things which have to be proved, and many
circumstances have to be proved in connection with them. That
money has been received might be proved in many different
ways, but it is the first principle of our law that a man is innocent
until he is proved guilty. There might be circumstances of sus-
picion, all capable of being proved, and all tending to point to the
278 QUEENSLAND JUSTICE OF THE PE-ACE.
Eegina v. Eotle. possibility or probability of guilt ; but such evidence has to be
EeaTj. given to the jury so as to enable them to say, not that it was
probable that the prisoner was guilty, but that he is guilty. I
feel it necessary to say that, because it has been urged that there
was no evidence that the prisoner had received money to a greater
extent than he had paid into the bank. The Act of 1890 provides
that where a man has charged himself in his account in the books
kept by him, or the entries made by him with a sum of money,
and has not accounted for the whole of it, the jury, if the man
was a clerk or servant, might f3nd him guilty of embezzlement.
That section was no doubt made to simplify the method of proof,
but I do not think that it altered the law. In all cases, an
admission, or a confession, is said to be the highest proof that
can be given of a man's guilt. That was the state of the law
before the passing of the Act, and I do not think this Act has
altered it in the slightest degree. I think the term " kept by
him " was used in the sense of a person who made entries. I do not
think it altered the law that a man who did not actually make
the entries could not bind himself by admitting the correctness
of the entries. The facts of the case show clearly that the
prisoner knew and admitted the correctness of the entries on the
debit side as concerning himself. That being so, it was his duty
to see that the books were properly kept. To my mind, there
was a clear admission of the receipt of the money, and the admis-
sion of correctness was as strong as if the prisoner had taken the
books and written " correct " across the entries. The important
question in the case is, that there cannot be a conviction of
embezzlement of money because there was nothing to show the
receipt and non-paying over of cash. The section of The Larceny
Act says, that an information could properly charge a man with
embezzling money, when all he had done was to take a valuable
security. The case of R. v. Keena, which has been cited as an
authority to the contrary, is, in my opinion, quite inconsistent
with the decision which has been come to by the Court. The
two decisions cannot stand together. I do not consider it
necessary to follow that case, and am satisfied that the conviction
ought to be confirmed.
Conviction affirmed.
Solicitors : O'Shea & O'Shea.
CRIMINAL EEPORTS, 1860-1907.
279
[Full Court.]
REGINA V. McGEE.
[6 Q.L.J. 151.— Note.— 55 Vie., No. 24, ss. 3, 4, and 10, are repealed, see now s. 215
of Criminal Code. Criminal Law Amendment Act ol 1891, s. 10, is repealed,
see now ss. 578 and 583 of Criminal Code. As to indecent assault, see now
s. 350 ot Criminal Co'de. Case referred to in R. v. Cawley (7 Q.L.J. at 50, post.]
Criminal Law Amendment Act of 1891 (55 Vic, No. 24); ss. 3, 4,
10 — Rape — Want of corroborative evidence — Indecent assault.
A prisoner charged with rape on a child under twelve years of age was found
guilty of an attempt to have unlawful carnal knowledge, under s. 4 of The Act of
1891, and of indecent assault. There was no corroborative evidence implicating
the accused.
Held, that the conviction as to the attempt must be quashed, but the conviction
for indecent assault affirmed.
Cbown Case Reseeved by Harding J.
At the Ipswich. Circuit Court, held on 28th July, Ernest McGee,
who had been charged with having committed rape on a child
under twelve years of age, was found guilty of an attempt to
have unlawful carnal knowledge of such girl, and, also, of an
indecent assault. The prisoner was defended by Mr. P. B.
Macgregor, who raised the points (1) that as to the attempt
there was no corroborating evidence within the meaning of the
last paragraph of s. 4 of Tlie Criminal Law Amendment Act of 1891 ;
(2) and that the jury, having found the prisoner guilty of the
attempt, were functi officio, and the information exhausted.
His Honour reserved these points. He sentenced the prisoner
separately on each conviction, but made the sentences concurrent,
and respited execution of the judgment until the questions raised
had been decided. Meanwhile, he remanded the prisoner to
gaol. In his statement of the case. His Honour stated that the
only evidence implicating the prisoner other than the evidence of
the girl to the commission of the offence was evidence that the
prisoner was at the place and on the same morning, but before
the time when the offence was sworn by the girl to have been
committed. As to the time when it was committed, evidence
was given in support of an alibi on the part of the prisoner.
The question for the consideration of the Court was, therefore,
whether the prisoner had been rightly convicted of the crimes
charged against him, or either, and which of them.
Power for the Crown ; Macgregor for the prisoner.
1894.
August.
Griffith d.J.
Harding J.
Real J.
280
QUEENSLAND JUSTICE OP THE PEACE.
Beoina V,
McGee.
Griffith C.J.
Geiffith C.J. : The prisoner was charged with rape. By
the 10th section of The Criminal Law Amendment Act of 1891
it is provided that if on the trial of an information for rape or any
offence made felony by the 4th section of the Act the jury are
satisfied that the accused person was guilty of an offence under
the 3rd, 4th, or 6th sections of the Act, or of an indecent assault,
but are not satisfied that the accused was guilty of the felony
charged in the information, or of an attempt to commit that
felony, the jury may acquit the accused of the felony, and may
find him guilty of such other offence, or of an indecent assault.
Upon the trial of this man, therefore, he might have been con-
victed under the 3rd, 4th, or 6th sections of the Act, or of an
indecent assault, or of an attempt to commit the offence of rape.
But by the provisions of the 4th section, and the 3rd and 6th
sections for that matter, it is enacted that no person shall be
convicted of an offence under the section upon the evidence of one
witness only, unless such evidence is corroborated in some material
particulars by evidence implicating the accused. Upon the trial
objection was taken that there was no evidence corroborating
that of the prosecutrix within the meaning of the Act. The
only evidence of a corroborative nature was, putting it at the
highest, that the accused and she were alone together in the house
where they both lived. They had not gone there for any par-
ticular purpose. They both hved there ordinarily, and had
been Hving there for some time. For my own part, I do not think
that that is corroborative evidence of an attempt to commit
this kind of offence upon her. I think, therefore, that there was
no corroborative evidence, and under these circumstances the
prisoner could not be convicted under the 3rd, 4th, or 6th sections
of the Act. But the rule requiring corroborative evidence does
not apply to the charge of indecent assault. The learned Judge
told the jury that he could see no corroborative evidence, and
advised them to acquit the prisoner of the attempt, and left it to
them whether he ought to be found guilty of indecent assault.
The jury, probably, thinking themselves wiser than the learned
Judge, and beheving the girl's evidence, found that he was
guilty of an attempt to commit an offence on a child under the
age of twelve years, and they also found him guilty of indecent
assault. The second objection was, that these two findings
could not stand together, and that under s. 10 the jury must find
the prisoner guilty of one of the offences enumerated in the
statute, or of an indencent assault, but could not find him guilty
of two offences, and that the verdict finding him guilty of two
CRIMINAL REPORTS, 1860-1907.
281
offences was, therefore, bad altogether. That was supported by
a very ingenious argument founded upon the words of this section,
which might be said to point to the conclusion that the jury must
make up their minds of what offence the accused was guilty, and
say that he was guilty of one or another, but could not find him
guilty of both. I think that in construing this section we ought
to have regard to the general law and rules of the Court relating
to criminal pleadings before the Act was passed. One of the
rules at common law was, that a plaintiff could make his case in
as many counts as he pleased, and if he succeeded in establishing
one of them to the satisfaction of the jury, he was entitled to
judgment on that. If damages were awarded jointly on a good
and bad count the verdict would not stand. In criminal pro-
ceedings it was competent for the Crown to join as many charges
as they thought fit in the same indictment — being all either felony
or misdemeanour — and they were treated theoretically as charges
of different offences. But that was mitigated by the rule that if
a man was really charged with more than one act as a crime, the
prosecutor could be called upon to elect which act he would pro-
ceed upon. Theoretically, as many charges might be included as
the prosecutor thought fit ; and, theoretically, if the jury gave
a general verdict, it would be good. And it was not uncommon
to combine charges of different offences in the same information
either for misdemeanour or felony. That being the general
practice under the old rules, the Court by degrees, for the purpose
of saving trouble and simplifying matters, introduced a rule that,
upon the charge of an offence which necessarily involved a minor
offence, the jury might find the accused guilty of the minor
offence. That was in the first year of Queen Victoria, I think.
That practice was further extended until brought to its highest
development in this Act now before the Court. The question
now is. What construction should be placed upon that new rule
of procedure ? Was an information, although containing only
one count, to be treated as containing separate counts for each
separate offence of which the accused might be found guilty
under the one charge ? For some purposes I think that is so.
Mr. Justice Harding in this case took the verdict of the jury on
each charge involved in the indictment. Other judges are
content to take the verdict of guilty on one charge and to treat
the verdict as one of not guilty on all the rest. The question,
then, arises whether it was competent under these circumstances
to find the prisoner guilty of more than one offence. It seems to
me that the principle intended to be introduced by the Acts
Begina u.
McGee.
Griffith C.J.
282
QUEENSLAND JUSTICE OF THE PEACE.
Eegina v.
McGee.
Griffith C.J.
Harding J.
Eeal J.
beginning with the last year of William IV., down to the year
1891, was to introduce into the criminal procedure an analogous
system to that provided for by the rules of common law procedure
— «o that the jury might, on a charge of this sort, if they found
all the necessary ingredients of a criminal offence, give- their
verdict upon it, and in addition find other ingredients which would,
together with the first, constitute a criminal offence of a higher
degree. If that is the correct view, the two findings could not
vitiate one another. A good finding supported by the evidence
would not be vitiated by a finding unsupported by the evidence.
I cannot find any authority, nor has any been brought under my
notice, showing that a verdict, supported by evidence that a man
was guilty of an offence, would be vitiated by a finding that he
was also guilty of some other offence, which was not warranted
by the evidence ; nor do I know any reason why the verdict on
one count should be taken in priority of the other. One of them
was warranted by the evidence ; the other was not. Under these
circumstances, I do not think the finding warranted by the evi-
dence was vitiated by the finding not warranted by the evidence.
For these reasons, I am of opinion that the conviction for the
attempt should be quashed, and that for the indecent assault
affirmed. I should Uke to offer one other observation in passing —
Under the old rule, where there were several counts in the in-
formation, they were treated as separate charges, and the sentence
upon them might be cumulative. They were, in point of fact,
different counts ; and there was nothing on the face of the infor-
mation to inform the Court that the charges were all in respect of
the same act. But where the same practical result, so far as
regards the capacity of the jury to convict, arises under the
statutory power, to which I have referred, the circumstances are
different, because there the Court knows, on looking at the
information itself, that it is only one act that is charged. It is
not several charges, but only one ; and although a man might
be convicted on such an information of various crimes technically
different, yet the Court knows that only one offence was charged,
so that in that case, I think there could be only one sentence ;
and if one offence was graver than the other, I think the minor
offence would merge in the greater one.
Harding and Real JJ. concurred.
The conviction for the attempted criminal assault was quashed,
and that for the indecent assault affirmed.
Solicitor for prisoner : P. A. 0' Sullivan.
CRIMINAL REPOETS, 1860-1907.
283
[Full Couet.]
BLACK V. TURNER.
[6 Q.L.J. 153.— Note.— 29 Vic, No. 5, s. 26, is repealed, see now ss. 22, 469, and
476 of Ciimlnal Code. Case followed in Keable v. Clancey, 3 Q.J.P.R. 206,
1909 S.R.Q. 345).]
Injuries to Property Act of 1865 (29 Vic, No. 5), s. 26 — Bona fide
claim of right — Wrongful admission of evidence.
A bona fide claim to use land as a highway ousts the jurisdiction of justices on
an information for malicious injury to a fence erected across such land.
Quaere, whether a map of the locus in quo, purporting to be drawn by a surveyor
who is not called as a witness, can be admitted in evidence if objected to.
Oedee nisi to set aside a conviction of Justices at Mount
Morgan, against W. Turner, under s. 26 of The Injuries to Property
Act of 1865, for unlawfully and maliciously destroying a fence,
whereby the defendant was ordered to pay a fine of one guinea,
thirteen shillings damages, and two pounds for costs.
The grounds for the rule were : (1) That the evidence disclosed
no offence ; (2) that there was no evidence that the defendant
acted unlawfully and maliciously ; (3) that the defendant acted
under an assertion of a bona fide claim of right ; and (4) that
evidence was wrongfully admitted.
It appeared that a fence had been erected by the trustees of
the Mount Morgan Racecourse across a track, which it was alleged
had been in use for some years as a highway. The defendant,
who had been in the habit of driving along this track, found it
one day closed by a fence, he pulled down about 35 feet and
made a way for himself. He was prosecuted for .maliciously
destroying the property of the Mount Morgan Racing Club, and
set up as a defence that the track was a public road, and that he
had a right to remove the obstruction.
It was also contended that the bench wrongfully admitted what
purported to be a plan of the locality.
Lilley for appellant ; Feez for respondent.
Gkiffith C.J. : The appellant was charged with having un-
lawfully and maliciously destroyed a fence, the property of the
trustees of the racecourse at Mount Morgan. The defence
that he set up was in substance that there had been for many
years a road leading through the racecourse reserve, and that
that road had by long usage become dedicated as a public highway.
In the present case there was no doubt that this road had been
1894.
August,
Griffith a J.
Harding J.
Real J.
Griffith C.J.
284
QUEENSLAND JUSTICE OF THE PEACE.
Black v. TnRNER. used for many years. It was not a road surveyed, or of any
Griffith C J, definite width, but it was a track that led through the land.
Whether it had been dedicated as a highway, or whether a road
could be dedicated by mere user under- such circumstances, were
interesting questions ; but, at any rate, there was no doubt that
under these circumstances a man might honestly believe that
such a right did exist. In my opinion, a bona fide claim of right
to use a highway is a sufficient claim of right to oust the jurisdiction
of the Justices. If it were a frivolous claim, the Justices would
probably not be bound to stay their hands. But I do not think
that the Justices had any evidence before them to suggest that
the claim of right set up was not bona fide. I therefore think
that the conviction ought not to have been made, and that the
rule must be made absolute. On the question of the admissibihty
of evidence, not having heard argument on both sides, I express
no opinion.
Harding J. Harding J. : I agree with the learned Chief Justice in his
opinion that reasonable evidence of a bona fide claim of right-of-
way was raised in the case, and upon it being given, the Magis-
trates' jurisdiction was ousted. I think that the rule must be
made absolute, also, on the ground that evidence was wrongly
admitted. The evidence said to have been wrongly
admitted was a map of the locits in quo. That was map D,
which purported to have been dra-mti by Frederick Byerley,
licensed surveyor, Rockhampton ; but Byerley was not called,
and so far as that was concerned it was secondary evidence of his
having made it. If he had been called, and the plan had been
tendered, the proper course for the counsel for the defendant
to have followed would have been to ask how it was made up.
The surveyor would at once have been bound to say that it was a
copy of another map, which itself had been compiled from notes
on the field, so that either map would not be primary evidence,
and in no case could this map be evidence at all. It was not
receivable evidence ; and after reading the evidence and listening
to the argument, I am of opinion that if I had been deciding the
case, the map would have materially affected my judgment.
Seeing that the Magistrates had visited the loctis in quo and took
the plan with them, I can only infer that it affected their decision.
It has been decided by the Court that in a criminal prosecution
it is the duty of the Judge to keep out illegal evidence, and that
if the case goes to the jury with illegal evidence a conviction will
CRIMINAL REPORTS, 1860-1907.
285
not stand. This evidence was wrongly admitted, and on that ^^"^ "• Tueneb.
ground also the rule ought to be made absolute and with costs. Harding J.
Real J. : I concur with the judgment of the learned Chief
Justice. I express no opinion on the wrongful admission of
evidence.
Conviction quashed with costs.
Solicitors for appellant : Bees R. di S. Jones.
Solicitors for respondents : Chambers, Bruce <fc McNah.
[BtTNDABERG CbIMINAL SITTINGS.]
REGINA V. ROBINSON.
[6 Q.L.J. 184.]
Prisoner committed for trial hut unable to he brought to Circuit
Town through illness — Form of Bench Warrant.
An information was presented against the accused for forgery
and uttering. The accused did not appear, and the Crown
Prosecutor, after reading an affidavit of the Government Medical
Officer that the accused was in Brisbane Gaol and was unable
through iUness to appear, appUed for the issue of a Bench Warrant.
The Chief Justice directed the application to stand over till the
close of the Sittings, and on its renewal at that time a Bench
Warrant was granted in the following form : —
Queensland.
IN THE CIBCtriT COURT AT BUNDABERG.
To all Police Officers within the Colony of Queensland, and
to the Keeper of the Gaol at Bundaberg in the said Colony :
These are to require and in Her Majesty's name to charge and
command you the said Police Officers upon sight hereof to bring
before me at the Circuit Court now holden at Bundaberg in the
said Colony Thomas Robinson against whom an information
has been presented before me in the said Circuit Court for forgery
and uttering a forgery if the Court be then and there sitting,
and if not to convey the said Thomas Robinson to the Gaol at
Bundaberg aforesaid and deliver him to the keeper thereof
together with this Warrant. And these are further to command
1894
5th October.
Griffith G.J.
286
Eegina v.
kobikson.
QUEENSLAND JUSTICE OF THE PEACE.
you the Keeper of the said Gaol to receive the said Thomas
Robinson into your custody into the said Gaol and him there keep
until the next Sittings of the said Circuit Court at Bundaberg
aforesaid or until he shall thence be delivered by due course of
law.
(Indorsement.)
I authorize that the within-named Thomas Robinson be bailed
by recognizance himself in the sum of £80 and two sureties in the
sum of £40 each.
1895.
Febrvary.
Griffith G.J.
Harding J.
Real J.
[Full Court.]
REGINA V. CONNELL.
[6 Q.L.J. 209.— Note.— As to embezzlement, see now s. 398 (VI.) of Criminal Code.
57 Vic, No. 1, is repealed by 4 Ed. Vn., No. 6. Case referred to in B. v.
Whitehouse, 6 Q.L.J. 313, post.)]
Criminal law — Embezzlement — Incorporation of company — 57 Vic,
No. I.
The Court will take judicial notice of the existence of an incorporated company
mentioned as such in a statute.
On a charge of embezzlement from such a company it is unnecessary to prove
its incorporation.
Ckown. Case Reserved by Noel D.C.J.
The prisoner was charged at Croydon with embezzling the
funds of the Queensland National Bank Limited. No evidence
was given of the incorporation of the bank. The learned Judge
refused to direct on that account that there was no proof that the
prisoner was employed by the Queensland National Bank
Limited, and that there was no proof of the existence of such an
institution.
The prisoner was convicted, but the points were reserved for
the FuU Court. '™'
Power, for the Crown, cited Regina v. Langton (2 Q.B.D. 296).
Ball for prisoner.
As there was some doubt whether the word limited was con-
tained in the information describing the bank, the case was
referred for amendment.
OEIMINAL REPORTS, 1860-1907.
287
Gbiffith C.J. : By the case as now amended it appears that
the prisoner was indicted for embezzlement as a servant of the
Queensland National Bank Limited. The evidence showed
that he was in the employ of the Queensland National Bank
Limited, as teller. The point taken by the prisoner's advocate
was that there was no evidence that the Queensland National
Bank Limited, was a duly incorporated joint stock company.
What conclusion might be come to apart from the statute 57
Vic, No. 1, it is not necessary to say. That statute recognised
the institution called the Queensland National Bank Limited,
as a duly incorporated joint stock company carrying on business
in Queensland. That is an Act of which the Court is bound to
take notice. It appears to me that the statute completely
answers the objection, and the conviction must be afifirmed.
Harding J. : To support a charge of embezzlement it is
necessary to prove the ownership of the property embezzled.
Now the owner of property is either an actual or an artificial
person having power to deal with it — actual such as a human
being, artificial such as an entity constituted and enabled by law
to deal with it. In no other way can property form the subject
of ownership. A dumb animal cannot, nor can an inanimate
thing own property. A number of persons cannot nor can a single
person not incorporated or so enabled by Act of ParUament own
property by a name. It belongs to them or him jointly and
severally as the case may be. If a man transfers his property
to an inanimate thing, it does not pass to that thing. In the
present case it was not at first stated that the Queensland National
Bank was a company incorporated or otherwise able or entitled
to hold property by the name of the Queensland National Bank.
As the case was left it might have been simply a trade name
or an individual or a number of persons unincorporated. Conse-
quently, the ownership of the property would not have been
found, and the prisoner would have been wrongfully convicted,
there being no evidence that such an institution existed in law.
As the case has come back it appears from the information that
the prisoner was charged as the employe of the Queensland
National Bank Limited, and that it was the property of that
bank and not of a company called the Queensland National
Bank he was .charged with embezzHng. The Judge's notes
of the case show that there was evidence of those facts, and of
the baiik as carrying on business. The production of the certifi-
cate of incorporation is not necessary when it is found that the
Rbgisa v.
CONNELL.
Griffith C.J.
Harding J.
?88
Begina v.
CONNELL.
, Harding J.
Eeal J.
QUEE^fSLAND JUSTICE OP THE PEACE.
company has carried on business as such. The Court takes
judicial knowledge of the existence of the Queensland National
Bank Limited, as an incorporated company, the company being
recognised by statute as such. The company being in existence
and the prisoner engaged as an employe of that company, there
was consequently evidence to go to the jury that the company
in respect of whose money he was charged with having embezzled
was the same company as that mentioned in the Act of Parlia-
ment 57 Vic, No. 1.
Real J. concurred.
Conviction affirmed.
Solicitor for prisoner : F. J. Lyons.
[Bbisbane Criminal Sittings.]
REGINA V. VOS AND OTHERS.
[6 Q.L.J. 215.— Note.— See Form No. 360, Part I., s. III., ol Schedule to Criminal
Code, Wilson & Graham's Code, p. 480.]
1895. Criminal law — Jurisdiction — Judicial notice — Pacific Islanders
15th March. Protection Act 1872 (35 and 36 Vic, c. 19), s. 9—38 and 39
Harding J. Vic, C. 51, S. 6.
On an information against certain prisoners for an alleged breach of s. 9 of 35
and 36 Vie., o. 19, a question arose whether the island of Malayta was part of Her
iKlajesty's dominions or within the jurisdiction of any civilised Power. The
presiding judge directed a letter to the Governor of Queensland, and received a
reply that it was not, but that it was under the protectorate of Her Majesty the
Queen. From an Order-in-Counoil, under s. 6 of 38 and 39 Vic, u. 51, setting out
the limits of dominion, it appeared that Malayta was not part of Her Majesty's
dominions, nor within the jurisdiction of any civilised Power.
Harding J. held he had sufficient information to take judicial notice of the
position of the island, and decided that the court had jurisdiction to try the
information.
Information against Joseph Vos, George Thomas Olver,
Michael Joseph Curry, Alfred Cuthbert Hall, Arthur Absalom,
and Alfred Dowsett, under 35 and 36 Vic, c. 19, s. 9.
Byrnes A.G., Power, and Lukin, for the Crown.
Feez for the prisoners.
CRIMINAL REPOETS, 1860-1907. 289
Byrnes A.G., before opening the case for the prosecution, R^oina f- Vos
stated that the question of the extent of Her Majesty's dominions
would probably arise, and submitted a reference should be made
to His Excellency the Governor, as Her Majesty's representative
in the colony, to inform the Court whether the island of Malayta
was within Her Majesty's dominions or within the jurisdiction of
any civilised Power. Reference was made to Mighell v. Sultan
of Johore (1894, 1 Q.B. 149) ; Be Carlo Pedro (5 Q.L.J. 22),
Taylor v. Barclay (2 Sim, 221), Foreign Jurisdiction Act, 1890
(53 and 54 Vic, c. 37), s. 4.
The jury were then impanelled.
At a later stage in the case Harding J. directed a question for the
Governor, " Is the island of Malayta, which is an island in the
Pacific Ocean, within Her Majesty's dominions, or within the
jurisdiction of any civiUsed power ? " A reply was received in
the negative. A copy of the Queensland Government Gazette,
dated the 21st May, 1892, containing the regulations under The
Pacific Island Labourers Acts ; a copy dated 31st August, 1872 ;
and a copy dated 16th November, 1875, containing a procla-
mation of 35 and 36 Vic, c 19, were put in evidence.
Feez submitted there was no case to go to the jury, and asked
for a direction to the jury to return a verdict of not guilty against
all the prisoners, on the ground that there is no evidence that the
island of Malayta is not within Her Majesty's dominions, nor
within the jurisdiction of any civilised Power ; and also on the
ground that there was no evidence that the islanders or any of
them were carried away without their consent. He cited Taylor
on Evidence, s. 17.
Habding J. : The question has arisen whether the island of Harding J.
Malayta is not in Her Majesty's dominions, and not within the
jurisdiction of any civilised Power. Whether that is for me as a
Judge declaring the law, or whether it is a question of fact to
be ascertained by the jury, has been raised by Mr. Feez. He
has contended that it is not a matter of judicial knowledge, or
amongst the things which are judicially taken notice of. The
American writer, Greenleaf on Evidence, Vol. III., 282, whose
book was taken as the basis of the EngUsh book by Taylor,
one of the leading books on evidence has thus stated the matter.
" The principle on which judicial notice is taken is the universal
notoriety of the facts in question. These are sometimes distri-
buted into two classes, composed of those things of which the
290 QUEENSLAND JUSTICE OF THE PEACE.
Eegina v. Vos Court of its own motion takes notice, and those of which it does
AND OtBBSR
not take notice, unless its attention is directed to them by the
Harding J. parties." If the Court is embarrassed, it may take or refuse to
take judicial notice of a fact which forms one of the subjects of
judicial cognisance, and unless the party calling upon the Court
to take such judicial notice produces the books and documents
which satisfy him as to its existence. But the Judge may inform
himself of such facts in any way which he may deem best in his
discretion, so that in this case I might have stopped the case
until the Attorney-General had proved to my satisfaction the
fact of which I am required to take judicial notice — namely,
that these islands are not in Her Majesty's possession or within
the jurisdiction of any civilised Power. I might have stopped
the case until he had produced evidence of that, or I might have
known it, and if I did not know it I might have informed myself
in any way which I deem best in my discretion. I am not obUged
to take judicial notice of any of those matters of fact, but I am
at liberty to do so at my discretion. The text writers say that
the exercise of that discretion depends upon the nature of the
subject usually involved, and the apparent justice of the case.
I have taken two courses in this case, each for the purpose of
satisfying myself, and they have both brought me to the same
conclusion. I have a letter under the hand of His Excellency
the Governor, Sir Henry WyUe Norman, signing himself, not
only as Sir Henry WyUe Norman, but as Governor of Queensland,
dated from Government House as late as the 12th March in this
present year. His Excellency has informed me that he is able,
from his official knowledge, to inform me that the island of Malayta
is not part of the Queen's dominions, and not within the juris-
diction of any civilised Power, but that it is under the protectorate
of Her Majesty the Queen. That, I think, alone would be suffici-
ent for me to base my opinion on ; but I further support my
knowledge by reference to the Pacific Islanders Protection Act of
1875, being 38 and 39 Vic, c. 51, s. 6, which says, " It shall be
lawful for Her Majesty to exercise power and jurisdiction over
her subjects within any islands and places in the Pacific Ocean,
not being within Her Majesty's dominions, nor within the juris-
diction of any civiUsed Power, in the same and in as ample a
manner as if such power or jurisdiction had been acquired by the
cession or conquest of territory, and by Order in Council to create
and constitute the office of High Commissioner in, over, and for
such islands and places." In the case of The King v. Daniel
CRIMINAL REPORTS, 1860-1907.
291
Holt in 5 Term Reports, p. 436, at p. 442, it is stated that " the
Gazette is of itself prima facie evidence of matters of State and
of the pubhc Acts of the Government. It is pubhshed by the
authority of the Crown ; it is the usual way of notifying such
Acts to the public ; and therefore is entitled to credit in respect
of such matters. Lord Holt held it a high misdemeanour to
pubhsh anything as from royal authority which was not so.
In a late case at Lancaster, upon an occasion similar to the present.
Justice BuUer held that the Gazette is evidence of the King's
proclamation contained therein. So it has been held by all the
Judges that the articles of war printed by the King's printer
are good evidence of such articles." Now, it being a high mis-
demeanour to publish as from the royal authority that which
has not the royal authority for its publication, and anything of
royal authority published by persons that have that authority
and profess to publish by royal authority is receivable as evidence,
I consequently turn to a publication of the English Government
which on the bottom of it has " published by authority." This
is a compilation of statutory rules and orders issued in the year
1893, and at page 312 I find the Pacific Order-in-Council of 1893.
Now that order specifically recites the section of the Act which I
have read, and that it is made in pursuance of that Act and other
Acts. Consequently anything contained in that order and
anything recited in the Acts of Parliament are to be taken by the
Courts to be facts. Now the Act which I have referred to (38 and
39 Vic, c. 51) has to be read and incorporated with 35 and 36
Vic, c 19, which recites in the preamble that "Whereas criminal
outrages by British subjects upon natives of islands in the Pacific
Ocean, not being in Her Majesty's dominions nor within the
jurisdiction of any civilised Power, have of late much prevailed
and increased, and it is expedient to make further provision for
the prevention and punishment of such outrages." Therefore
the Act of Parhament and the Order-in-Council were both made
with the object of providing' for places " not being in Her
Majesty's dominions nor within the jurisdiction of any civilised
Power." From that I take it that anything I find stated as a
fact in this Order-in-Council is the law of the land, and is a fact
recognised by our law. Now the Order-in-Council states that
its hmits shall be the Pacific Ocean and the islands and places
therein, including certain mentioned, but exclusive, except as
this order expressly provides by subsection 2, of any place for
the time being within the jurisdiction or protectorate of any
Regina v. Vcs
AND OtUEBS.
, Harding J.
292 QUEENSLAND JUSTICE OF THE PEACE.
Kegina v. Vos civilised Power. Consequently this order cannot apply to any
AND OTHEEa. , , ^ , ... .,.,..,.. "^
place that is for the time being withm the jurisdiction or pro-
Hardmg J. tectorate of any civilised Power. Going on, I find that although
the order had a much larger application than what I am going to
read, yet it says in the sixth clause that jurisdiction under ii
shall be " exercised only in relation to the following parts of the
limits of this order, that is to say : — 1. The groups of islands,
so far as they are not within the jurisdiction of the German
Empire. ... 2. Any seas, islands, and places which are
not excluded by the fourth article of this order, and are situated
in the Western Pacific Ocean, that is to say mthin the following
limits : North, from 140 degrees east longitude by the parallel
12 degrees north latitude to 160 degrees west longitude, thence
south to the equator, and thence east to 149 degrees 30 minutes
west longitude ; South, by the parallel 30 degrees south latitude ;
West, by the meridian 140 degrees east longitude." I have
worked that out with the map which I had in Court, and I find
that this island of Malayta is within the specified limits. Conse-
quently the order applies to the island, and by a subsequent
section of the Act the jurisdiction to be assumed by any order
is not to cover dominion by Her Majesty, so that the order on
its face shows that this island is within its hmits, and being
within its limits the island itself to which it applies must be not
a dominion of Her Majesty ; and as the order is not to apply to a
place for the time being within the jurisdiction or protectorate
of any civilised Power, it must necessarily be outside the juris-
diction or power of any other State. I think, therefore, that on
the law Mr. Peez's objection is overruled. The Court must
necessarily have notice of all things which its subjects must have
notice of, and which they would be taken to have notice of at
their own trial. Now each of these men in the dock has notice
of the law, and is presumed to have actual knowledge of the law,
and under this Act of Parliament and these regulations that is
the law with respect to them. Now, could it for one moment
be conceived that the prisoners are to know the law and the
Judge is not ? That conclusion would be absurd, and I think
that the Judge must be held to know this judicially. I sympathise
to a certain extent with Mr. Peez in his argument that no metes
and bounds have been proved. If a mountain had been men-
tioned, the Court would have been unable without proof to ascer-
tain what were the bounds of the mountain. But an island is
land surrounded by water, and the moment one comes to the
CEIMINAL EEPORTS, 1860-1907. • 293
water they come to the limit of the land, and they can make Eegina v. Vos
no mistake, and the Court takes judicial knowledge of that.
I think that the Court has such information before itself that it Ha^iding J.,
•could find that island and the spot where this took place. So
that I overrule Mr. Feez's main objection. As to the other
point, that there is no evidence that the three islanders were
■carried away without their consent, the onus by the section
Tinder which they were being tried is thrown upon them. I
think that if the Crown simply made a prima facie case of suspicion,
the onus is thrown on the prisoners of clearing themselves and
showing consent. I also agree that if the offence was committed
by taking the islanders off the island, that that offence could be
compounded afterwards, and that it would be necessary for the
prisoners to show that the taking of these men from their islands
was from the first inception with their consent. Whilst in the
neighbourhood of the islands they were bound to be landed if
after consenting they withdrew their consent. So that it is
upon the prisoners right through. It was said with regard to
Hall that there was no evidence of his connection with the trans-
action from the beginning to the last. I think there is evidence ;
the weight of it is of course for the jury. The prisoner Hall,
having been mate on a ship, was a man in authority under the
captain, and in authority over others when the captain was absent.
I think that the fact that on a signal being made from the boats
Hall went to these boats, and after he got to them, from his
position as mate, it was his duty to satisfy himself of the state
of affairs. I think that when Hall had persons under his com-
mand— sailors and others — whose lives were in his hands, he was
in a place where he might be attacked by natives and firearms,
he ought at once to have satisfied himself of the position of affairs.
Had he looked round it is scarcely possible to conceive but that
he would have seen a man had been chopped in two parts of his
body with an axe and was bleeding at the arm. Had he seen
that, and it is for the jury to say whether he did or did not, it
was clearly his duty to make inquiry into the case. If he did not,
it was a prima facie case against him, and if he cannot discharge
himself by showing that these men were there by their own
consent — ^if the jury find these facts — why necessarily, a verdict
of guilty follows. With regard to the prisoners Absalom and
Dowsett, it is said that there is no evidence that they took part
in the carrying away of these boys, or aided and abetted or
counselled or procured the commission of the offence. No
294
QUEENSLAND JUSTICE OF THE PEACE.
Begina v. Vos
AND OlHEBB.
Harding J.
doubt there is evidence, but the weight of it is for the jury. They
were sailors in the ship, boatmen in the boat, and under the
command of others. So far they would probably only come in
as accessories, unless it were proved that they knew the actual
scheme to steal the men and they were actually taking part in
it. But if they came as aiders and abetters and accessories, then
they must have known of the crime they were taking part in ; and
if they did not know, or how far they did know, would be matter of
justification for them to the jury. With respect to the obeying
of superior orders, if under the circumstances they thought or
could have thought, or if the jury thought that they could have
believed the persons commanding them were justified in ordering
them to take away from these islands these men struggling and
crying, and wounding their captors, well then they will go free.
If the jury carmot think that they had any business to obey these
superior orders, but ought to have at once thrown down their
oars, and said, " We won't have any more to do with this," they
would have to show consent on the part of the natives. Then,
as to the prisoner Vos, there is direct evidence against him that
Quisoolia offered to steal him men and he sanctioned it. If
that is believed, well, there is ample evidence, but it is for the
jury to decide as to its weight. I have satisfied myself, for the
reasons I have given, that there was some evidence. Before I
dealt with each case I advised the jury that the weight and the
true value of that evidence is for the jury, and I do not wish
the fact that I have picked out pieces here and there to have any
influence with them. The question of the facts will be for them
in a future stage of this case. I am satisfied that there is evidence
on these points to go to a jury. I have judicial knowledge of
and have declared the status of the island. Mr. Feez, I over-
rule your objections.
The prisoners were subsequently acquitted.
Solicitors : O'Shea & O'Shea ; Winter & McNdb.
CRIMINAL REPOflTS, 1860-1907.
295
[Brisbane Ceiminal Sittings.]
REGINA V. KOVALKY.
[6 Q.Ii.J. 219.— Note.— See now s. 613 of Criminal Code. See R. v. Roche (3 Q.L.J.
139, ante p. 204.)]
Criminal law — Arraignment — Deaf mute — Insanity.
A person charged with murder was found mute by the visitation of God. A
fresh jury was impanelled to try whether he was sane or not. Evidence was given
that he bad not sufficient intellect to understand the proceedings so as to mal:e a
proper defence, challenge the jurors, or comprehend the details of the evidence.
HaBDiNG J. directed the jury, if they thought he had not sufficient intellect there-
for, to find him insane. The jury did so, and the prisoner was ordered to be
detained to be dealt with under The Insanity Act of 1884, Regina v. Pritchard (7
C. & P. 303) followed.
Inpormation against August Kovalky for murder.
The prisoner, on being arraigned, stood mute. A jury was
impanelled to try whether the prisoner was mute by malice or
by the visitation of God. Medical and other evidence was given,
and the jury found that he was mute by the visitation of God.
A fresh jury was then impanelled to decide whether he was
insane.
Evidence was given that the prisoner was a deaf mute, and
had not sufficient intellect to understand the proceedings of the
Court so as to make a proper defence, to challenge the jurors,
and comprehend the details of the evidence.
Harding J. directed the jury on the authority of Regina v.
Pritchard (7 C. & P. 303) that if they believed the evidence they
should find the prisoner insane. The jury found that the prisoner
was insane and could not be tried on the information.
Harding J. directed the prisoner to be kept in strict custody
in the Brisbane Gaol until he should be dealt with in the manner
provided by The Insanity Act of 1884.
1895.
26th March.
Harding J.
Harding J.
296 QUEENSLAND JUSTICE OF THE PEACE.
[BUNDABEEG CbIMINAL SITTINGS.]
REGINA V. MANY MANY AND OTHERS.
[6 Q.L.J. 224.— Note.— Case referred to in K. v. Tim Crown (6 Q.L.J. 283, )post.
See also R. v. Archibald (2 S.C.B. 47), ante p. 44 ; McNamara v. Edwards
(1907 S.R.Q. 9), post.]
1895. Criminal law — Evidence — Confession — Answers to questions put by
mhApril. ^ pp^^gg constable after arrest— b% Vic, No. 23, S8. 2, 10.
Harding J. ^ confession elicited by questions put to a prisoner by a police constable after
arrest and without caution is admissible against the prisoner unless the answers
have been induced by a threat or a promise.
Regina v. Gavin (15 Cox 656) any Regina v. Male (17 Cox 689) not followed.
Infokmation against Many Many, Forka, Narasamei, Miore,
Ohasbiby, and Quitongtonga, Pacific Islanders, for the murder
of a white man, whose name was unknown.
Evidence was given of the finding of the body of a man, and
several articles were found near the body and taken possession of
by the police. The Crown proposed to give in evidence, state-
ments made by each prisoner to a poHce constable after arrest
and without caution being administered. The constable pointed
out the articles to the prisoners separately and said, " You see
them ? " The prisoners answered, " Yes ; belong 'em old fellow
white man ; me altogether kill 'im."
Scott, for the prisoners, objected, and submitted the police had
no right to ask questions after arrest, citing Regina v. Bodkin,
9 Cox, 403 ; Regina v. Gavin, 15 Cox, 656 ; Regina v. Male and
Cooper, 17 Cox, 689 ; Regina v. Walker, 13 V.L.R. 469 ; and
submitted the question was not affected by 58 Vic., No. 23, s. 10.
Power, for the Crown, submitted there was no inducement,
and pressed for the ruhng of the Court.
Harding J. Habding J.: The Evidence and Discovery Act of 1867 was
meant to be a code on the law of evidence for Queensland. Sec.
64 of that Act dealt with confessions, and is identical with sec.
11 of the New South Wales statute, 22 Vic, No. 7. Sec. 64 was
repealed last year by The Criminal Law Amendment Act, and a
new provision enacted, which now regulates the law under sec.
10. This provision is that no confession shall be received which
has been made under the influence of a threat or promise made
by a person in authority. That re-enacts the old law, with this
exception : that it leaves out the provision of the Act of 1867,
which regulates a confession induced by an untrue representa-
CRIMINA.L REPOBTS, 1860-1907.
297
tion, or a confession induced by a threat or promise made by any
person whatsoever. Now the law provides that the threat or
promise inducing the confession must be made by a person in
aathority. When this law came into force in New South Wales
the law in England was different from that cited by the learned
counsel for the defence. In Roscoe's Criminal Evidence, 10th
Ed., p. 51, it is stated that a confession is admissible in evidence
where it has been eUcited by questions put by a person in author-
ity. The law of England before 1867 is to be found in the case .
of Eegina v. Thornton, 1 Mood, C.C. 27, also in Russell on Crimes,
vol. iii., p. 472, and the cases collected in Archbold, 264-266 all
contained the same ruling, till Regina v. Gavin, which was decided
after the passing of the Colonial Act. In England, where there
is no statutory law on the subject, it appears to me that the judges
have been expanding the rule against the admission of confessions.
The New South Wales statute was passed in 1858, before Separa-
tion. So far as I know, it has been the constant practice here to
■allow such answers to go in. I have frequently had occasion to
comment on the impropriety of obtaining evidence in such a way,
but I am certain the above has been my practice, and I have a
strong recoUection of Sir Charles Lilley also having made it so.
His charge to a constable in one case was, " Keep your eyes open,
and say nothing." But he held that if a constable did ask any
questions of a prisoner when under arrest, although it was morally
wrong, the evidence was not inadmissible. It has been decided
at least six times in New South Wales that such evidence is
admissible. These cases are cited in Wilkinson's Magistrate, pp.
118-119. In the case of Regina v. Spring and Mason, where the
accused were charged with murdering one De Witt, the learned
judge would have admitted the confession, had not the statement
that induced it been untrue. That was as far back as 1860. I
think, therefore, that as regards the law in the Colonies, the
matter is res judicata. If it is not, I am perfectly willing to assume
the responsibility of deciding it myself. I admit the evidence.
The prisoners were convicted and sentenced to death.
Solicitor : Thorburn.
Beoina u.
Many Many
AND Others.
Harding J.
298
QUEEISSLAND JUSTICE OF THE PEACE.
1895.
15th May.
Chuhb J.
Chubb J.
[Chaktees Towers Criminal Sittings.]
REGINA V. ROSS.
[6 q.L.J. 261.— Note.— See now s. 619 of Criminal Code.]
Criminal law — Murder — Practice — Statement of prisoner read to
jury.
A prisoner was allowed to read a statement to tbe jury after his counsel's address,
and the Crown Prosecutor was allowed a reply on the new matter.
Bcgina v. Shimmin (15 Cox 122) followed.
At the Circuit Court, Charters Towers, held before Chubb J.,
in May, 1895, George Ross was tried for the murder of his wife,
Annie Ross. At the close of the case for the Crown, Macnaughton,
for the prisoner, announced that he did not intend to caU witnesses,
but asked the Court to allow a written statement, signed by the
prisoner, to be read to the jury before he addressed them on his
behalf.
Chubb J. : The prisoner is now, by The Criminal Law Amend-
ment Act, 1892, a competent witness on his own behalf. Why
cannot he give this statement on oath ?
Macnaughton : He is in such a state of nervous anxiety that
I do not think he is physically able to give evidence. In Regina,
V. Blacks, 1880, Bowen J., on a trial for murder allowed this
course. In Regina v. Doherty (16 Cox, 306), Stephen J. did the
same, subject to the right of the prosecution to reply.
Chubb J. : In Regina v. Milehouse (15 Cox, 622) Lord Coleridge
C.J. says that it may be done after his counsel has addressed
the jury, and that this was resolved by the majority of the Judges,
in which he did not agree. The question was considered at a
meeting of all the Judges liable to try prisoners, held in November,
1881, and adjourned for further consideration. After this
meeting. Cave J., in Regina v. Shimmin (15 Cox 122), allowed the
prisoner to give his own version of the facts after his counsel had
addressed the jury, subject to a right of reply by the prosecution
on the new matter, and His Lordship said that this was the rule
of practice intended to be followed in future. Now that the
prisoner is a competent witness for himself, ought the practice
to be continued ? I do not know of any settled rule in this Court
one way or the other. For the present, therefore, I will follow
Regina v. Shimmin, and allow the statement to be read after you.
have addressed the jury.
CRIMINAL REPORTS, 1860-1907.
299
MacnaugUon then addressed the jury, after which the prisoner's Eeoina^Boss,
statement was read by his counsel and handed to the associate.
Jameson rephed for the Crown.
The prisoner was convicted of manslaughter.
[ROCKHAMPTON CIRCUIT COUET.]
REGINA V. WILLIAM TRACEY.
[6 Q.L.J. 272.— Note.— 29 Vic, No. 11, ss. 15 and 16, are repealed, see now s. 410 of
Criminal Code as to definition of loaded arms to same effect as s. 16 of repealed
Act (29 Vic, No. 11).]
Criminal law — 29 Vic, No. 11, ss. 15, 16 — Attempt to discharge
a loaded arm — Failure of attempt from want of priming or
other cause.
A revolver, loaded in some of its chambers, and capable of being; discharged if
the trigger is drawn a sufficient number of times, is a loaded arm within the
meaning of 29 Vic, No. 11, s. 16.
The prisoner drew the trigger of a six-chambered revolver, which was loaded in
three consecutive chambers, three times, the hammer falling upon the empty
chamhers. Before he had time to draw the trigger a fourth time the weapon was
knocked oat of his hand.
Held, there was evidence of an attempt to discharge loaded arms.
The information against the prisoner was under 29 Vic, No. 11,
s. 15, for attempting to discharge loaded arms with intent to
murder.
Power for the Crown.
Pattison for the prisoner.
It appeared that the prisoner, on the 19th May, had been
drinking and fighting with another man in the yard of an hotel
at Barcaldine. There was a large crowd of men in the yard.
The prisoner had knocked down his opponent, who rose, and
was about to renew the struggle, when the prisoner drew from his
belt a six-chambered self-acting repeating revolver, loaded in
three consecutive chambers, and pointed it at the -crowd. At
this moment a police constable in plain clothes rushed through
the crowd, and cried, " Stop that, Tracey ! " The prisoner then
pointed the weapon at the constable's breast, and said, " Stand
back, or I'll put a ball through you," and immediately drew the
1895.
Mth September.
Chubb J.
300
Regina v.
William TBACBt.
Chubb J.
QUEENSLAND JUSTICE OF. THE PEACE.
trigger three times. Three distinct cHcks of the hammer faUing
on the chambers were heard, but the hammer having fallen on
the unloaded chambers, it was, of course, not discharged. Before
the prisoner could draw the trigger again the constable closed
upon him, and knocked the weapon out of his hand. Upon
examination, it was found that the next pull of the trigger would
have caused the hammer to fall on a loaded chamber.
The question was raised whether the revolver was a loaded
arm within the meaning of the statute, and whether there was
evidence of an attempt to discharge it.
Chubb J. referred to Regina v. Jackson, 17 Cox, 104, per
Charles J., and said he was of an affirmative opinion on both
points, but would, if necessary, reserve the questions for the
consideration of the Full Court.
The prisoner was acquitted.
1895.
2nd December.
Griffith CJ.
[Brisbane Criminal Sittings.]
REGINA V. FREEMAN.
[6 Q.L.J. 281. — Note. — As to challenge, see now s. 611 of Criminal Code. As
to Crown showing cause for challenge, see R. v. Shaw (7 Q.L.J. (N.C.) Ill),
post. Case followed in R. v. Wardell (9 Q.L.J. 49), post, and R. v. Johnstone
(1907. S.R.Q. 155), post]
Trial on criminal charge — Jurors — Challenges — Order to stand by
— Proceedings in absence of jury — Evidence — Dying declaration.
A juror coming to the book to be sworn had put out his hand and had touched
but not grasped the book, when he was called upon by the Crown to stand by.
Held, that that the order to stand by was not too late.
The time during the empanelling of a jury at which the Crown shall show cause
for their challenge is in the discretion of the Court.
The whole of the proceedings in a criminal trial must be in the presence of the
jury.
On the trial of A for murder, a statement by the deceased person B was tendered
as a dyin^ declaration. At the time of her making the statement B was in danger
of her life from blood-poisoning, of which she died five weeks later. She was
informed by her medical attendant that she would never recover. She said, " Let
me die." A magistrate was then brought, who said to her, "Are you sure you will
never recover?" She said, "Yes." She then made the statement in question,
which was reduced into writing by the magistrate. He then read the statement
over to B, and she said it was correct. The magistrate then said, "Do you expect
CRIMINAL ■ REPORTS, 1860-1907. i 801
ever to recover?" B said, "No." The magistrate then said, "This is your Eegina v.
dying declaration, will you sign it ? " B signed it. Fbeeman.
Both before and after the making of the statement B asked her nurse, "Do you
think I shall die ? " The nurse said, " No. "
The statement contained the words, "Being in a serious state and not expecting
to recover."
Held, that the statement oould not be admitted.
Trial of Howard Freeman on a charge of the murder of
Katherine Noble Crofton, before Griffith C.J. and a jury, at the
Brisbane Criminal Sittings.
Power appeared to prosecute.
Lukin for the prisoner.
During the empanelling of the jury, a juror, Frederick Webb,
was ordered by the Crown to stand by. Mr. Lukin objected that
challenge was too late.
On inquiry from the tipstaff and the juror himself, it appeared
that the latter had put out his hand towards, and had touched
the book, but that it was still entirely resting in the officer's hand
when the juror was called upon to stand by.
Power referred to Roscoe, p. 197, and to Joy on Confessions,
p. 217.
Griffith C.J. : I think the challenge was in time. The juror
will therefore stand by.
When the jury panel had been gone through twice, only ten
jurors had been sworn, the prisoner's counsel having peremptorily
challenged seventeen jurors. The other jurors had been ordered
to stand by. The first of these jurors was then again called,
and was again ordered by the Crown to stand by.
Lukin : This is the third time of calling the panel. The Crown
can now only challenge for cause.
Power : The Crown need not show cause for their challenge
until it appears that a jury cannot be empanelled without recourse
to the jurors ordered to stand aside by the Crown.
Griffith C.J. : The judgment of Bramwell B., in Mansell v..
Regina (D. & B., 375) is directly in point. I will follow his^
opinion, and I therefore hold that the direction to stand by at
this stage is to be considered as an application to the discretion
of the Court to allow the assignment of cause for the Crown's
challenge to be postponed. As there are still some twenty
jurors unsworn, I will allow the assignment of cause to be post-
poned accordingly.
302 QUEENSLAND JUSTICE OF THE PEACE.
Eegina v. During the trial Lukin wished to cross-examine witnesses as
^ ■ to the admissibility of a statement tendered by the Crown as
evidence against the prisoner, and proposed to do so in the absence
of the jury.
Griffith C.J. : I do not think that such a course can be
followed. The jury must, I think, be present throughout the
whole of the proceedings.
A statement made by the deceased was tendered by the Crown
as a dying declaration.
The circumstances of the making of the declaration appeared
by the evidence of Dr. Budgett and J. W. Ayscough, and were
as above set out.
Lukin objected to its reception, and cited R. v. Osman (15 Cox,
C.C. 1), R. V. Gloster (16 Cox, C.C. 471), R. v. Smith (16 Cox, C.C.
170), R. V. Forrester (4 F. & F. 857), R. v. Reaney (1 D. & B., C.C.
156), 26 L.J. (M.C.) 43).
Power referred to R. v. Reaney {swpra).
Griffith C.J. Geiffith C.J. : I have had some difficulty in coming to a
conclusion on the evidence whether at the moment the deceased
made the statement she had a settled and hopeless expectation of
death, or whether at that time she still entertained some slight
hope that she might recover, or at any rate, would linger for some
considerable time. In the case of R. v. Reaney (1 D. & B., C.C.
156), which has been cited by counsel for the defence, it was laid
down that the question turned upon the state of the person's
mind at the time of making the statement rather than upon the
expected interval before death. In that case it is to be observed
that the patient was suffering from a broken spine, a mortal
injury, and knew that he must die. In this case I believe the
words used at the time of the declaration were substantially
as described by Mr. Ayscough and Dr. Budgett. Ayscough's
evidence is that he said to Mrs. Crofton, " You are not expected
to recover ; we have come to take your dying statement ; you
appear to be very ill ; do you ever expect to recover ? " She
replied, " No." And that after he had taken the statement he
said, " This is your dying statement ; do you expect to recover ? "
and that she again replied, " No," Dr. Budgett thinks the
question might have been in this form, " Are you sure you will
never recover ? " To which she replied, " Yes." For my own
part I do not pay much attention to the supposed exactness
of verbal recollections of conversations related after a considerable
CRIMINAL REPOETS, 1860-1907.
303
interval of time. In Reaney's case a good deal of reliance was
placed in argument upon the word " ultimately," as in this case
upon the word " ever." I have come to the conclusion, after
considerable fluctuation of opinion, that at the time Mrs. Crofton
made the declaration she believed that her illness was fatal, and
that she would probably never get well. But I do not think she
thought that death was actually impending. I think she had
some sort of lingering hope of recovery, and I am confirmed in
that view by the initial words of the statement itself, namely :
" Being in a serious state and not expecting to recover." Under
aU circumstances I do not think that the deceased woman had
at the time when she made the statement such a belief in the
imminence of her death as to render the statement admissible
as a dying declaration. I therefore reject the evidence.
The prisoner was acquitted.
Solicitors for prisoner : O^Shea & O^Shea.
BeQINA I'.
Fbebmak.
Griffith C.J.
[Full Court.]
REGINA V. TIM CROWN.
16 Q.L.J. 283.— Note.— See also R. v. Archibald (2 S.C.R. 47, ante p. 44 ; McNamara
V. Edwards (1907 S.R.Q. 9), post ; R. v. Murphy (5 Q.J.P.R. 86).]
Grown case reserved — Evidence — Admission made by prisoner
after arrest in answer to questions by a constable — Criminal
Law Amendment Act of 1894, s. 10.
A, having been arrested on a criminal charge, made a statement implicating B in
the charge. B was afterwards arrested, and the arresting constable, in A's presence,
read over A's statement, which had been reduced into writing, to B. During the
reading of the statement B made a farther statement to the constable.
Held that B's statement was admissible against him.
R. V. Tlwrnton (1 Moo. C.C. 27), R. v. Rogerson (9 S.C.B. (N.S.W.) 234),
and R. v. Many Many (6 Q,L. J. 229) followed.
R. V. Thompson (1893, 2 Q.B. 12) distinguished.
Crown Case Reserved by Mr. Justice Chubb at Mackay
Circuit Court.
The prisoner, Tim Crown, who was a Polynesian, was charged
with several other Polynesians, at the Mackay Circuit Court,
with wounding with intent to commit murder, and on a second
count with wounding with intent to do some bodily harm. On
1895.
December.
Griffith C.J.
Cooper J.
Real J.
804
QUEENSLAND JUSTICE OF THE PEACE.
Regina r.
Tim Ckown.
Griffith C.J.
the evidence of , a police constable, it appeared that one
of the prisoners, Loondooah, after arrest, made a statement to
him, which alleged, inter alia, that prisoner Crown struck the
wounded man about the head and face. Crown was afterwards
arrested by the constable, who read over to him tjiis statement in
Loondooah's presence. When he came to where Crown was
said to have struck the wounded man, Crown said, " No ; I only
held his head," and showed with his hands how he had held the
injured man. This last statement was admitted by the learned
Judge as evidence against Crown, but at the request of prisoner's
counsel he reserved the question of its admissibility for the
consideration of the Full Court. In the case stated by him for
the consideration of the Full Court the learned Judge invited
an expression of opinion by the Court as to the propriety of police
officers putting questions to persons in custody.
Stumm, for the prisoner : The arrest of the prisoner and the
reading to him of the confession of his fellow-prisoner operated
as a threat, and the confession was not a free and voluntary one.
The whole policy of the law is against allowing a constable to
obtain an admission from a prisoner by means of cross-examina-
tion. The evidence should have been rejected and the conviction
ought therefore to be quashed. He cited R. v. Male and Cooper
(17 Cox, 689), R. V. Thompson (1893, 2 Q.B., 12), R. v. Gavin
and others (15 Cox, 656), R. v. Bodkin (9 Cox, 403), R. v. Day
(2 Cox, 209), R. V. Moore (2 Den. C.C, 522).
Geiitith C.J. referred to R. v. Johnston (15 Ir. C.L.R., 60)
overruling R. v. Bodkin (ubi supra) and to R. v. Thornton (1 Moo.
C.C, 27).
V. Power, for the Crown : The whole question is ^^hether an
admission made by a prisoner to a constable after arrest is inad-
missible within the terms of s. 10 of The Criminal Law Amendment
Act of 1894. The practice in Queensland has always been to
admit such statements, and the law was clearly laid down by
Mr. Justice Harding in R. v. Many Many (6 Q.L.J. , 229) at
Bundaberg this year. He also cited R. v. Rogerson (9 S.CR.
(N.S.W.) 234).
Griffith C.J. : The point raised in this case, as I understand
it, is whether evidence of an admission made by an accused
person can be received when that admission has been made
whilst he was in custody and in answer to questions put by a
constable or a person in authority. I understand that to be
CRIMINAL KEPORTS, 1860-1907.
305
the point, although the statement or admission made in the
present case was not made in answer to a distinct question. 1
suppose, however, that there was a standing invitation to him to
assent to or contradict the confession of another of the accused,
which was being read over to him. It is objected that an
admission obtained in this way is not admissible in point of law.
As I understand it, the general rule as to admissions made by
parties is that they are admissible, and they have sometimes
been said to be the best evidence. With respect to admissions
made by a person charged with a criminal offence, however, the
rule is that the confession must be free and voluntary, or — in
terms which I understand to be synonymous — that it must not
be induced by threats or promises, using these terms in their
fullest sense. I take it that that is an exception to the general
rule of admissibility. If that is so, the statute of last year merely
affirms the common law, which is that prima facie an admission
is admissible, but in the case of a criminal charge it is not admis-
sible if it has been procured by means of threats or promises.
But it is not inadmissible merely because it is made by a person
in custody in answer to questions put to him by a constable.
That was held to be the law in England in the case of R.
V. Thornton, as long ago as 1824. It was held to be the law
in Ireland by eight judges out of eleven in 1864, and it was held
to be the law in New South Wales in 1870, in the case of R. v.
Bogerson. It has been followed as the practice in this colony
always, as far as I know, and has been expressly held to be the
law here in the case of R. v. Many Many, tried at the last Bunda-
berg Assizes. It is true that in the case of R. v. Thompson, the
latest case which was decided by the Court for Crown Cases
Reserved, it was said that, in order that an admission may be
admissible, it must be shown affirmatively that the confession
was free and voluntary, that is, that it was not preceded by any
inducement to make the statement held out by a person in author-
ity. That proposition, as applied to the facts of that case, is no
doubt perfectly correct. There had been a distinct inducement,
in the nature of a promise, held out indirectly to the accused,
and it had come to his knowledge, and had operated upon him.
It was clear that that inducement having been held out, the ad-
mission could not be received. I do not know whether it was
intended by the Court to dissent from the previous decisions or
the previous practice of the English Court. Certainly the case
was not one in which the question now under consideration
Regina v.
Tim Cuown.
Griffith C.J.
306
QUEENSLAND JUSTICE OF THE PEACE.
Regina I).
Tim Cbown.
Griffith C.J.
Cooper J.
Efal J.
really arose for decision. I do not think we can take this case
as overruling the previous decisions or the practice of this Court.
The real question is in each case, Was the confession induced by
a threat or promise ? To my mind it is perfectly immaterial on
■whom the onus of the proof rests — whether on the prosecution to
show negatively that the admission was not, or on the prisoner to
show affirmatively that it was, induced by a threat or promise,
because I think it is the duty of the learned Judge to satisfy
himself that it was not induced by any threat or promise. That
being so, the only question for our consideration in this case is,
Is the fact that the statement is made to a constable, in answer
to questions put by him, proof that it was induced by a threat
or promise ? I do not think it is. A confession may be made
to a constable under the influence of a threat or fear, or terror, or
it may be induced by a promise or by the expectation of benefit,
or it may not. In the present case there is nothing but the mere
fact that it was made to a constable after the arrest in the course
of conversation. That is not sufficient to render it inadmissible.
Prima facie I think it is admissible, and there is nothing to show
that it was not admissible. As to the general question whether
a constable should ask an accused person questions or not, I
desire to express my concurrence with the observations made by
Chief Justice Stephen in the case of R. v. Rogerson, in New South
Wales, and with the similar observations made by Parke, B.,
long before. There may be cases in which it would be highly
proper to put questions to a person in custody, and other cases
where it would be extremely improper. On the abstract question
as to the manner in which constables should discharge their duty,
I do not feel called upon to express any opinion. I think the con-
viction should be affirmed.
CooPBE J. : I am of the same opinion, and I do not wish to
express it in other words.
Real J. : I concur in the judgment of the learned Chief Justice.
On the question as to the propriety of police-constables cross-
examining prisoners I do not wish to offer an opinion. I can
conceive of circumstances under which it might be the right thing
to do, and on the other hand, I can conceive of circumstances
under which it might be most objectionable.
Griffith C.J.
Griffith, C.J. : The conviction will be affirmed.
Griffith C J.
CEIMINAL REPOETS, 1860-1907. 807
[Brisbane Ceiminal Sittings.]
REGINA V. PUZIL DEEN.
[6 Q.L.J. 302.]
Criminal law — Evidence — Murder — Husband and wife. l89o.
mh and agth
A man and a woman at Sydney, N.S.W., went through a ceremony which they November.
helieved to be a marriage ceremony according to the Mahommedan faith, before a
person whom they believed to be a Mahommedan priest, and they subsequently
lived together as man and wife.
The woman was tendered as a witness against the man on a charge of murder.
Held, that the validity of the marriage must be determined by the judge as a
question relating to the admissibility of evidence. The marriage being held to be
invalid, the woman's evidence was admitted.
Trial of Fuzil Deen before Griffith C.J., at the Brisbane
Criminal Sittings, on the charge of murdering Koomal.
Power, for the Crown, tendered ; Gul Shang as a witness.
Macgregor, for the prisoner : I am instructed that this witness
is the prisoner's wife. On that ground I object to her evidence.
Power disputed the fact of the marriage.
Griffith, C.J. : The objection raises a question of fact which _
must be determined by the Court before admitting or rejecting
the evidence.
Gul Shang, sworn on the voir dire, deposed that she was
prisoner's wife, having been married to him in Sydney some five
or six years previously. The marriage was performed by a
Mahommedan priest, and the ceremony, which took place in
the presence of several witnesses, was according to the rites of
the Mahommedan faith. The witness was a widow at the time
of her marriage with the prisoner, and had subsequently lived
with him as his wife in the belief that they were properly married.
Peter Macpherson (sworn on the voir dire and also in the case)
deposed that he was a solicitor of the Supreme Court of New
South Wales, and that, by .the marriage laws of that colony,
with which he was acquainted, a marriage, to be legal, must be
•solemnised by a minister of religion ordinarily officiating as such,
and who is registered as a minister for celebrating marriages, or
by a Registrar. He did not think a Mahommedan priest could
be registered in New South Wales as a minister for celebrating
marriages. There was no provision in the law of New South
Wales for validating marriages made by unqualified persons who
were believed by the contracting parties to be qualified.
308
QUEENSLAND JUSTICE OF THE PEACE.
Begina v.
FnziL Deen.
Griffith C.J.
GBiFraTH C.J. : I am of opinion that the mtness is not the
prisoner's wife. She may therefore be sworn as a witness for
the prosecution.
Gul Shang was sworn accordingly.
1896.
March.
Griffith C.J.
Cooper J.
Real J.
[Full Court.]
REGINA V. WHITEHOUSE.
[6 Q.L.J. 313.— Note.— See now s. 398 (VI.) of Criminal Code. Case followed
in R. V. Cawley (7 Q.L.J. 45), post.]
Criminal law — Embezzlement — Proof of incorporation of CA)mpany —
Grown Case Reserved.
On the trial of W. for embezzling moneys, the property of the New York Life
Insurance Coy. , evidence was given that a company carried on business in Brisbane
under that name. No other evidence was given of the incorporation of the com-
pany in Queensland or elsewhere, nor was the name of any member of the company
proved. W. was found guilty.
Held, on a Crown Case Eeserved, that there was no evidence of the existence of
the company as a corporation as distinguished from a partnership, and that, as no
evidence had been given of the name of any partner, the conviction must be
quashed.
Crown Case Reserved by District Court Judge Miller.
On the case stated by the learned District Court Judge, it
appeared that the prisoner was charged before him at Rock-
hampton with the embezzlement of £10 10s., the property of
the New York Life Insurance Coy. No evidence was given at
the trial of the incorporation of the company in Queensland or
elsewhere, but it was proved that a company was carrying on
business in Brisbane under that name. The learned Judge
allowed the case to go to the jury, but reserved, (among other
points which were not decided by the Court) , the question whether
there was any proof of the existence of the company as an insti-
tution. The jury found the prisoner guilty.
The prisoner, in person, submitted that there was no proof of
the existence of the company as a corporation as distinguished
from a partnership, and that, as there was no proof of the name
of any partner, the conviction should be quashed.
Byrnes A.G., and Blair for the Crown. The fact that the com-
pany was carrying on business under the pame stated, and the
CEIMINAL REPORTS, 1860-1907.
309
nature of that business, is some proof that it was not merely a
partnership. They cited R. v. Langton (2 Q.B.D. 296).
Real J. referred to R. v. Conndl (6 Q.L.J. 209).
Griffith C.J. ; The first question reserved in this case is
whether there was any proof of the existence of the New York
Life Insurance Company as an institution, and that the prisoner
was employed by that institution. I understand that to mean
any proof of its existence as a corporation as distinguished from
a, partnership. The prisoner was charged before the District
Court with embezzling the money of the New York Life Insurance
Company, and the only evidence of its corporate existence was
that a company, caUing itself the New York Life Insurance
Company, carried on business in Brisbane under that najjie.
There was nothing else to show, and no other evidence to indicate,-
that it was incorporated by the law of Queensland, or by the law
of any other country. We know that in these days there is a very-
large number of limited companies carrying on business in Aus-
tralia, some incorporated by the law of Queensland, and some
incorporated by the law of other countries. In the case of a
limited company carrying on business in Queensland, the use of
the word " limited " as part of its name, would, I think, in accord-
ance with the case of R. v. Langton, be some evidence that the
company is incorporated. In the case of other companies, a
statement by a witness that a company was formed, say, in New
York or New South Wales, or anywhere else, and was carrying
on business by that name, would be some evidence that it was
a foreign corporation and entitled to recognition by the laws of
international comity. But in the case of an institution as to
which there is nothing to show how or where it originated, the
mere fact that it is called a company does not indicate with any
certainty that it is anything -more than a partnership. We know
that there are many partnerships, in Queensland and elsewhere,
calling themselves companies, which are not incorporated. And,
in the absence of any further evidence, either in the name of an
institution or otherwise, than the use of the word " company,"
I do not think it is a legitimate inference that it is incorporated.
On the evidence in this case it is equally probable that the com-
pany in question is not a corporation but merely a partnership.
In the case of a partnership, it is necessary that the name of one
of the partners at least should be stated in the indictment as an
owner, on a charge of embezzlement of property belonging to
Eegina v.
WBITEnODSE.
Griffith C.J.
SIO
QUEENSLAND JUSTICE OF THE PEACE.
Eegina v.
Whitehouse.
Griffith C.J.
Cooper J.
Beal J.
the partnership. That objection seems to be fatal, and without
expressing any opinion on the other points, I think that the
conviction should be quashed.
CooPEB J. : I am of the same opinion.
Real J. : I also am of the same opinion.
The conviction was quashed, and the prisoner discharged.
1896.
Jur.e,
Griffith C.J.
Seal J.
[Full Couet.]
REGINA V. EDWARDS, Ex parte HOWELLS.
[7 Q.L.J. 25.— Note.— 53 Vic, No. 12, ss. 42, 43, repealed as to prosecutions, see
now s. 661 (1) of Criminal Code to like effect. See B. v. Tidbuiy (8 Q.L.J.
N.C. Ill), post.]
Defamation law (53 Vic, No. 12), ss. 42, 43 — Costs of defendant
in action for criminal libel — Recovery of costs by execution —
District Courts Act of 1891 (55 Vic, No. 33), ss. 120, 161, 191
— Prohibition.
A successful defendant in proceedings in the District Court under s. 42 of the
Defamation Law, may recover his costs by execution in the District Court.
BicAardson v. WiUis (L.R. 8 Ex., 69) distinguished.
A writ of prohibition will not issue to an officer of a court unless he is assuiaing
to act in a judicial capacity.
Application on behalf of Henry Howells to make absolute
an order nisi addressed to the District Court, and to Francis
Edwards, to show cause why a prohibition should not issue to
prohibit any proceedings on an order made in the District Court
on the above action on the 11th March, 1896.
The facts appear fully in the judgment -of the learned Chief
Justice on the application for the order nisi.
April 24th.
On the application for the order nisi,'
Chambers for the applicant : On the facts the defendant is
entitled to his costs, but not by the method by which he is now
seeking to enforce them. In Richardson v. Willis (L.R. 8 Ex. 69)
it was decided that defendant's costs in such cases were recover-
able by action and not by execution. An order nisi to restrain
the District Court Registrar should therefore be granted.
C.A.V.
CEIMINAL REPORTS, 1860-1907.
311
April 27th.
Griffith C.J. ; The applicant prosecuted Edwards for
defamation. The case was tried in the District Court at Gynipie,
when the jury returned a verdict of not guilty. The defendant
thereupon became entitled, under s. 42 of the Defamation Law,
to recover from the prosecutor his costs of defence. On the 11th
of March the Judge made an order that the defendant should
have the costs, which were afterwards duly taxed by the Registrar
of the Court, as prescribed by the Act. The defendant then
obtained from the Registrar a warrant of execution for their
recovery. Apphcation is now made for an order nisi for a
prohibition to restrain the execution of the warrant, on the
ground that payment of the costs payable under s. 42 can only
be recovered by action, and not by summary execution, and the
case of Richardson v. Willis (L.R. 8 Ex. 69) is relied on. It is
asked that the writ should be addressed to the defendant and tho
Registrar of the Court. Prohibition is a writ issued to restrain
an excess of jurisdiction (or sometimes a wrongful exercise of
jurisdiction), on the part of an inferior court acting in the assumed
exercise of judicial functions. In the case of excess of jurisdiction,
it is granted as soon as it appears that the inferior court has
committed such a fault as to found the authority of the superior
court to prohibit, i.e., as soon as it appears that the inferior
court has acted without jurisdiction {Mayor of London v. Cox,
L.R. 2 H.L. 239, 278). It is ordinarily addressed to the Court
and the party, although if the Court assuming to exercise the
jurisdiction objected to is out of the country, it may be addressed
to the party alone [Ih. p. 280). But I know of no case in which
it has been addressed to any officer of a Court unless he is assuming
to act in a judicial capacity. And in my opinion the writ cannot
be addressed to such an officer. The apphcation cannot there-
fore be granted in the form in which it is made. It appears,
however, tliat in the present case the Judge himself made an order
for payment of the costs. Section 161 of the District Courts Act
authorises the Registrar to issue a warrant of execution in any
case in which a judgment is given by a judge for the payment of
money. And the term "judgment" includes an order (s. 3).
The Registrar appears, therefore, to have been prima facie justi-
fied in issuing the warrant in obedience to the order. But if the
objection taken by the applicant is a good one, the judge had no
jurisdiction to make the order of 11th March, and as he was
acting judicially when he made it, prohibition will lie in respect
Kkoina tl.
Edwabds,
Kx parte
IIOWJELLS.
312
QUEENSLAND JUSTICE OF THE PEACE.
Eegina v.
Edwards,
Ex parte
HoWElaLS.
Griffith C.J.
of that order. The objection is worthy of argument. A rule
nisi may therefore go, addressed to the District Court and the
defendant, to show cause why a prohibition should not issue to
prohibit any proceedings on the order of 11th March.
On June 2nd, before the Full Court (Griffith C.J., and Real J.),
Lukin showed cause : This case is clearly distinguishable from
Richardson v. Willis, where the Court was a Court of oyer and
terminer, which had no power to issue execution. Reading s. 42
of the Defamation Law mth ss. 120 and 161 of The District Courts
Act of 1891, it is clear that the judge had power to make an order
as to costs, and the Registrar to issue execution on such an order.
The " proceedings," as to costs of which the Judge has power
under s. 120 to make an order, are not to be construed as Umited
to civil proceedings (In re Briton Mescal and General Life Assur-
ance Association, 32 Ch.D. 503). Section 43 contemplates the
recovery of costs by execution, and 0. XXXII., r. 8 (Crown side),
which s. 191 of the District Court Act makes applicable to this
case, gives the right of recovery by execution, of the costs of
crim^inal and quasi-criminal proceedings. Further, even if the
Judge had no power to make such an order, prohibition is not
the proper remedy. He also cited R. v. Latimer (15 Q.B. 1077),
Short on Mandamus, p. 46, Farrow v. Hay (33 L.J. Ex. 258).
Macdonnell : Though Richardson v. Willis was a decision as
to a court of oyer and terminer which had no power or machinery
to issue execution, still that case refers to a general rule that the
recovery of costs in such cases shall be by action.
[Gbipfith C.J. : A court of oyer and terminer was appointed
by special commission and came to an end when its work was done.
There was no officer by whom a writ of execution could be issued.
There was no question in Richardson v. Willis as to the propriety
of the judgment awarding costs. An action would always lie on
a judgment.]
Section 120 of the District Courts Act is, under Part V., the part
of the Act relating to civil proceedings, but s. 161 is under the
general heading. The two sections cannot therefore be read
together as urged by the defendant.
Geiffith C.J. : This is an interesting argument, raising after
all a small point. The present prosecutor, as he is called in these
proceedings for prohibition, was the defendant in a prosecution
in the District Court at Gympie for defamation. He was ac-
quitted, and upon that acquittal was entitled, under s. 42 of the
CEIMINAL REPOKTS, 1860-1907.
313
Defamation Act, to receive his costs from the then prosecutor.
The learned Judge thereupon made an order that the defendant
should have his costs of the prosecution. It is objected that the
Jearned Judge had no power to make that order, that the rights
of the defendant were determined by the statute, and that he
must be left to such remedies as are provided by the statute.
After hearing the argument, I have come to the conclusion that
it is the function of a Judge, in pronouncing the judgment of the
Court, to declare completely the rights to which the parties are
entitled. The result of the acquittal in this case was that the
•defendant became entitled to be discharged from the prosecution
and to recover his costs from the prosecutor. The judgmcxit
ought therefore to have declared his right in both respects. The
form in which a right to recover costs is declared in a judgment" is
T)y an award that the party entitled recover them from the other
party. The learned Judge in the present case formally made
that order. The order of the Judge was therefore right. He
had jurisdiction, and it was his duty, to pronounce the judgment
which he pronounced. The acquittal would indeed have been
followed by precisely the same result even if he had not actually
pronounced or used these words in court in his judgment, for
when the formal judgment came to be drawn up the award of
«osts would have been included. I think that disposes of the
matter, because under s. 161 of The District Courts Act of 1891, in
any case in which a judgment of a District Court is given for the
payment of money, execution may issue.
The rule must be discharged with costs.
Real J. : I am of the same opinion and for the same reasons.
SoHcitors for appellant : Chambers, Bruce cfc McNab.
SoHcitois for respondent : Tozer, Conwell <Se Tozer.
IIHGINA r.
J'^DWARDS,
Ex parte
HOWBLLS.
Griffith C.J.
Beal J.
814
QUEENSLAND JUSTICE OF THE PEACE.
1896.
4th August.
Griffith G.J.
Cooper J.
Seal J.
[Full Coukt.]
REGINA V. CAWLEY.
[7 Q.L.J. 45 ; N.C. 20.— Note.— 29 Vic, No. 13, ss. 48 and 49 are repealed, see new
s. 668 of Criminal Code. As to verdict when ownership uncertain, see s. 566
(15) of Criminal Code.]
Criminal law — Evidence — Proof of incorporation of company —
Right of counsel to withdraw point previously asked to he reserved
— Special case under Criminal Practice Act of 1865 (29 Vic,
No. 13), ss. 48, 49 — Duty of Full Court in considering special
case.
On a trial of a prisoner on a charge of stealing a gelding and filly, the proper! y
of " Meredith, Menzies & Co., Ltd.," e-vidence was given that the company carried
on business under that name in Queensland, and that the manager in Queensland
believed, but did not know of his own knowledge, that the company was registered
as a limited company in Melbourne.
Hdd, on a Crown case reserved, that this was sufficient evidence of the incor-
poration of the company.
B. V. Langton (2 Q.B.D. 296), if. v. Bower (5 N.S.W. W.N. 28), and E. v. White-
house (6 Q.L.J. 313) followed.
Counsel may at any time during a criminal trial withdraw a request for tie
reservation of a question which they have at an earlier stage of the trial asked ta
have reserved.
Hdd by GRirFiTH C.J. and Cooper J. (Real J. dissentienie) that in dealing
with a case stated under s. 48 of The Criminal Practice Act of 1865, it is the duty
of the Full Court to consider such questions only as are distinctly raised upon
the case.
Per Cooper J. ; But where, on the facts stated in the case, there h4s been a
manifest miscarriage of justce, the Full Court should intervene and repair the
injustice, although the judge stating the case has failed to direct their attention
to the point.
Rbai J. : It is the duty of the Court to consider any questions of law that arise
on the facts stated in the case, whether formally reserved or not.
Special Case stated by the Judge of the District Court at
Croydon, setting out the following facts : The prisoner Cawley
was tried before the District Court at Croydon. The information
contained two counts charging the prisoner with larceny, the first
count laying the ownership of the stolen property, a gelding and
filly, in Thomas NicoU and others, and the second count laying it
in Meredith, Menzies & Co., Ltd. John Neal, the manager for
the company, gave evidence as follows : — " Am manager of
Milungra and Taldora stations. The stations belong to Meredith,
Menzies & Co., Ltd. The company is registered in Melbourne.
CRIMINAL EEPORTS, 1860-1907. 315
The head office is there. The company was registered early last Eeg™a v. Oawlby
year. I got the notice of the fact that a limited company had
been formed in June. I altered my cheques from Meredith,
Menzies & Co. to Meredith, Menzies & Co., Ltd. I signed " John
Neal, pro Meredith, Menzies & Co., Ltd." Before that the station
had belonged to a partnership — Thomas Nicoll, J. B. Nutting
and others. Nicoll and Nutting are members of the firm. The
registered brand of Milungra and Taldora stations was 7TT."
In cross-examination the manager said : "I don't know of my
own knowledge that the company is registered, but I have reason
to beheve it is."
At the conclusion of the evidence the prisoner's soUcitor asked
the judge to direct the jury to acquit the prisoner, on the ground
that there was no proof of the existence of the company as distin-
guished from a partnership, and no proof of the name of any
partner in such a partnership. The learned judge, relying on
.B. V. Whitehouse (6 Q.L.J. 313), refused to direct an acquittal,
and the solicitor then requested him to reserve the point for the
consideration of the Full Court.
The case stated that in his charge to the jury, the District
Court Judge requested them, as there was no evidence of the
precise date when the partnership merged into a limited company,
or as to the precise date of the alleged stealing, to find an alter-
native verdict if they found the prisoner guilty. The jury found
that the prisoner stole the gelding, the property of Thomas Nicoll
and others ; or, if not, that he stole the gelding, the property of
Meredith, Menzies & Co., Ltd.
Just as the judge was about to pronounce sentence, the prisoner's
solicitor withdrew the point he had asked to have reserved.
The prisoner was sentenced to four years' penal servitude, but
the sentence was respited, and the judge stated this case, raising
for the consideration of the Judges of the Full Court on the facts
as above set out, the questions : (1) Was he right in refusing to
direct the jury to acquit as requested ? (2) Can counsel withdraw
a question which he has previously had reserved ?
Lukin, for prisoner : The point raised in the court below as to
the evidence of incorporation of the company, was good. There
was no sufficient evi(Jence of incorporation. The case resembles
that of R. V. Whitehouse (6 Q.L.J. 313), where the incorporation
of the company was not proved.
Cooper J. : Does not the second question settle the whole
matter ? If counsel has power to withdraw a question he has
316 QUEENSLAND JUSTICE OF THE PEACE.
Eeoina v. Cawlet previously asked to have reserved, it seems to me there is nothing
before this Court.
Lukin : Counsel has not power to withdraw a question after
having reserved it {R. v. Matthews, 1 N.S.W. W.N. 118).
Griffith C.J. : Counsel often ask that points be reserved which,
on a little further consideration, they see are untenable. Your
contention would leave them no locus penitentice.
Lukin : Better that than a miscarriage of justice. The case
in this instance has been stated, and the prisoner is entitled to
the benefit of it. The case shows further that the jury found an
alternative verdict, and though the point was not specifically
raised at the hearing, prisoner is entitled to profit by the defect
in the finding.
Cooper J. referred to R. v. Taylor (6 N.S.W. W.N. 147).
Mansfield : On the question of the sufficiency of the evidence of
the incorporation of the companj', the evidence given in this case
is quite sufficient {R. v. Whitehouse, 6 Q.L.J. 313, and R. v.
Langton, 2 Q.B.D. 296).
Cooper J. referred to R. v. Bower (5 N.S.W. W.N. 28).
Mansfield : Further, it is manifest that such an objection does
not extend to the charge of stealing from individuals in the
alternative count of the information. Counsel has power to
withdraw a question previously reserved at his request {R. v.
Taylor, 6 N.S.W. W.N. 147), and this Court will only consider the
questions submitted by the learned District Court Judge. The
case is stated relatively to those questions.
Cooper J. : Exactly. The case is stated by the judge to bring
out certain questions which he specifically states for our consider-
ation, but non constat that if his mind had been directed to other
points he might not have stated the case more fully, or even differ-
ently.
Mansfield : That is so ; and on the authority of R: v. Smith
(Temple & Mews Rep. 214) the Court will not consider the question
of the alternative verdicts, as that question is not raised in the
case.
Griffith C.J. Griffith C.J. : The points specifically reserved by the learned
Judge in the special case stated by him are whether he was right
in refusing to direct the jury to acquit the prisoner on the ground,
substantially, that there was no evidence that the company
called Meredith, Menzies and Company, Limited, was a corpora-
CRIMINAL REPORTS, 1660-1907. 817
tion, and whether counsel can withdraw a question which he has Begina v. Cawley
previously asked to have reserved. The prisoner was indicted Griffith C.J.
for larceny of a horse, charged in the alternative as being
the property of Thomas NicoU and others, and the
property of Meredith, Menzies and Company, Limited. The
evidence as to the incorporation of Meredith, Menzies and
Company, Limited, was that they carried on business under
that name in Queensland, and that their manager beUeved the
company was registered in Victoria. The learned District
Court Judge held that that was sufficient evidence, and he refused
to direct the jury as he was requested to do. On the face of it,
I do not see the point of the objection, because it did not go to
the first count of the indictment at all ; but as the point has
been submitted, we must answer it. I am of opinion that the
evidence given was sufficient evidence of the incorporation of
the company. It was so held in R. v. Langton (2 Q.B.D. 296) in
England ; it was so held in the case of R. v. Bower (5 N.S. W.W.N.
28) mentioned by my brother Cooper ; and this Court intimated
its opinion to the same effect in the case of R. v. Whitehouse (6
Q.L.J. 313) last year. The learned Judge was, therefore, quite
right in refusing to direct the jury to acquit on that ground.
As to the question, " Can counsel withdraw a question which
he has previously had reserved," it appears that counsel thought
the point raised was untenable, but that the learned Judge
doubted whether the request to reserve it could be withdrawn.
It is quite clear that he would not have stated the case had it
not been for that doubt. Now, s. 48 of the Criminal Practice
Act provides that when a person has been convicted of treason,
felony, or misdemeanour before any court of criminal jurisdiction,
the Judge before whom the case is tried shall, on the application
of counsel made during the trial, or without such application
in his own discretion, reserve any question or questions of law
which have arisen on the trial for the consideration of the Supreme
Court. So that the conditions are three — the question or questions
must arise during the trial, there must be a conviction and a
reservation of the questions after the conviction. In the case
of questions reserved on the application of counsel, the application
must be made when the time arrives for reservation, that is, after »
the conviction. I think that an application once made during
the trial may be considered as a standing application up to that
time, and that it may be withdrawn at any time before effect is
given to it. That has been the practice, and I cannot entertain
318 QUEENSLAND JUSTICE OF THE PEACE.
Begina v. Cawley any doubt on the point. If the District Court Judge had been
Griffith CJ. of that opinion, it is quite clear that we should not have been
troubled with this case. And as, in my opinion, there is nothing
in the previous point, it seems to me that, on the questions reserved
in the special case, the conviction must be affirmed. Another
point has been suggested in the course of the argument which
has given rise to much more difficulty, and that arises from the
statement in the case by the learned District Court Judge that,
in consequence of there being no precise evidence as to the exact
date when the partnership merged into a Umited company,
or as to the precise date of the alleged stealing — that is, I suppose,
whether it was before or after the incorporation — he asked the
jury to find an alternative verdict ; and the further statement
that the jury found that the prisoner stole the gelding, the
property of Thomas NicoU and others, or, if not, that he stole
the gelding, the property of Meredith, Menzies, and Company,
Limited. It has been suggested that that finding should be read
to mean that the jury did not know whether it was the property
of NicoU and others or of Meredith, Menzies, and Company,
Limited. For my own part, I do not so read it. The con-
struction— although, for the reasons I will give later, I think this
is quite immaterial — that, I think, is to be put on these words, is
that the jury found the horse was the property of NicoU and
others when it was stolen, but that, if they were wrong in that
finding, it was the property of the company. If that is so, it
would be a finding that it was the property of NicoU and others.
But it was urged that the statement in the case meant that the
jury did not know whose property it was, and that, as that
appears on the face of the case, we ought to consider whether the
prisoner was properly convicted. Now, our authority is con-
ferred by the 49th section of the Criminal Practice Act, which
provides — " The Judge .... shall, thereupon state in a
case signed in the manner now usual the question or questions
of law which shall have been so reserved, with the special circum-
stances upon which the same shall have arisen, and such case
shall be transmitted to the Judges of the Supreme Court, and the
said Judges shall thereupon have full power and authority to
hear and finally determine the said question or questions."
That is the section which confers our authority, and I think
it Umits our authority, and I think it Umits that authority to
deaUng with the question or questions that have been reserved.
No question was reserved as to whether the direction to the
CRIMINAL REPORTS, 1860-1907.
319
Kegina v. Cawley
jury was erroneous, or whether the form of verdict was erroneous,
nor, indeed, do we know exactly what the form of the verdict Griffith C.J.
was. Probably it was recorded as a verdict of guilty on both
counts. The view I take is confirmed by r. 5 of 0. XXXI.
(Crown Side Rules), which provides that every case stated for
the consideration of the Court shall state the question or questions
of law, and such facts only as are material to raise the questions
submitted. The duty of the Judge in stating a case, therefore,
is to confine hiniseK to the facts material for raising the question
or questions of law submitted. The learned Judge of the District
Court, in stating this case, had in his mind, " Was I right in
refusing to direct the jury to acquit, as requested ? Can counsel
withdraw a question which he has previously had reserved ? "
Any other facts were irrelevant, and his mind was not specially
directed to them. In construing the language used in a case
stated, or, indeed, in dealing with language used by anybody,
it is very important to know the subject dealt with. It may be
that if the point sought to be raised had been about the form of
the verdict, or the form of the direction given to the jury, the
Judge would have stated the case very differently. It would
have been his duty to have gone more into detail, and on the
facts so stated it might have turned out that there was nothing
in the point, or it might have appeared that the prisoner was
wrongly convicted. But that is mere matter of conjecture,
and as it is not one of the questions raised in the case, I do not
think we should be right in acting upon any particular construc-
tion of the language used, or in sending the case back to the
District Court Judge for what would be a mere speculative inquiry
whether, on the whole, this prisoner should have been convicted.
I do not think that is our duty. I think our duty is merely to
consider whether the points raised at the trial were properly
decided. I need hardly say that a Judge cannot ask a jury
to return an alternative verdict ; that is to say, cannot ask a
jury, who are not sure whether the prisoner committed either
of two crimes charged against him, to find that he committed
one or the other, though they do not know which. No point of
that kind is expressly raised here, and I do not think we ought
to go beyond the questions raised, or to send the case back, to
the Judge to see whether there was any other point in the case
upon which the prisoner might have been acquitted. If it
manifestly appeared on the case that injustice had been done
we might perhaps be justified in interfering. For these reasons
I think the conviction must be affirmed.
320 QUEENSLAND JUSTICE OF THE PEACE.
Begina r. Cawley Coopbe J. : I am of the same opinion, and I desire only to
Cooper J. ^^^ * word or two on the question which has not been submitted
to us for decision by the learned Judge, but which has been raised
by argument in the case before us to-day — that his Honor, the
learned Judge, was right in asking the jury to return an alternative
verdict on the ownership of the property which was stolen. I
think that if the learned Judge did direct the jury to find an
alternative verdict on this question that that was wrong direction,
and although I am entirely of opinion with the Chief
Justice, that we have no right to go outside the questions which
have been submitted to us in the special case, yet if upon the
statement of the learned Judge it appeared that he was wrong
in his direction, and that substantial injustice had been done^
I think this Court should take notice of it and repair the injustice.
I do not think, however, that any such appears clearly in this-
case, but if the learned Judge, as I said before, did direct the
jury to find an alternative verdict he was MTong. It does not
appear that any objection was taken to his direction at the
trial, nor does it appear to me upon his statement that the jury did
actually return such a verdict. They found that the property
was the property of NicoU and others. That is a definite finding.
And then they say " if it is not, if there is not sufficient evidence
to support that, or if NicoU and others were members of an
incorporated company at that time, then we find that the property
was the property of the incorporated company." I do not think
that that is what we would call an alternative finding. It is quite
possible that if the record were looked at (it is not before us as
we have to confine our attention to the special case), we might
find that jury's verdict was " guilty upon both counts." I
thought from some of the arguments raised that we ought to
send back this case in order to get some information on that
subject, but now I do not think that is necessary. I think we
ought to confine ourselves to the questions submitted for our
decision, and on these questions I entirely agree wdth the judg-
ment delivered by the learned Chief Justice.
Real J. Ebal J. : I agree with my brother Judges as to the right
to withdraw and also with reference to there being evidence
of *the incorporation of the company to authorise the Court
in answering the second question, that the Judge was not wrong in
refusing to direct the jury to acquit, but I regret to say I am
compelled to differ as to the right of this Court upon the case
submitted to it. Section 48, as read by my brother the Chief
CKIMINAL EEPOETS, 1860-1907. 821
Justice, authorises the Judge to reserve any question, and to R'"*iNAt\CAWLEY
state that question in the shape of a special case. The Rules direct Eeal J.
him to confine the facts to those necessary, to raise the question
he desires to reserve. In this case the learned Judge does not
purport to reserve any question as from himself. He purports
in the categorical question that he puts at the end to merely
reserve the question raised by counsel. The question as to the
power of withdrawal was raised by himself. I read s. 48 as
authorising the Judge to reserve any question, and I think that
when the Judge has stated any facts to us in the shape of a special
case, the mere statement of these facts reserve for our considera-
tion every question clearly arising upon that statement. Then
it becomes necessary that we should look at the case. If any
questions of law clearly arise upon these facts stated, it is for us,
in my view, to dispose of them. The mere fact that the case does
not say " I reserve this or that " does not lessen our powers.
If there is any ambiguity, if the Judge places the case before us
in such a manner as to show that the statement of facts is not
full and complete, but only a statement for the purpose of shedding
light upon categorical questions, then, of course, they may be
possibly disregarded ; but when there are clear and specific
statements of facts, about which there is no ambiguity, then
with my brother Cooper I agree that it is the province of this
Court to see that justice is carried out. I have the misfortune to
difPer with my brother Cooper as the clearness with which the
facts in this particular case are stated. To my mind there is
no ambiguity whatever. The charge against the prisoner was of
stealing the property of certain individuals described as a partner-
ship, and the second count charged him with stealing the property
of a corporation. The learned Judge says distinctly that there
was no evidence to show which set of persons — that is, the cor-
porative or the individuals — owned this property. Now in a
charge of larceny it is essential that the ownership of property
should be proved, and if there was no evidence to prove which
of two persons OMned it, then there could not be a conviction.
The learned Judge, to get rid of that difiiculty, told the jury
to find a verdict in the alternative ; and to my mind that is an
order which he could not make. Of course, my brother Cooper
takes a different view. He considers that if the jury, with the
direction of the Judge, found substantially that the stolen
property was the property of John Smith, but if not it was cer-
tainly John Brown's, then there might be some question. On
322 QUEENSLAND JUSTICE OF THE PEACE.
Eegina v. Cawley jjjg direction of the learned Judge it seems to me that the jury
Beal J. found that the animals were either the property of Nicoll and
others, or they were the property of the limited company, and
their finding must be read in conjunction with the Judge's charge,
and in order that a jury of honest men could give that finding
it was not necessary that the whole twelve of them should be
satisfied with the ownership. To my mind it must be a finding
of twelve jurymen to convict the prisoner, and ihey must find
every fact essential to the conviction. On the statement by
the learned Judge in this case it appears to me that that was not
done. Of course, it is of no importance, in consequence of the
view taken by my brother Judges ; but had they agreed with me,
and had doubt arisen as to the meaning of the words used by the
learned Judge as to whether they expressed him with sufficient
clearness, the case should be sent back to him. But to my
mind there is no ambiguity. He says " In my charge I directed
the jury to find an alternative verdict, if they found the prisoner
guilty." The jury found that the stolen property was the pro-
perty of Thomas McoU and others, and if not it was the property
of Meredith, Menzies and others. That meant, if they had found
what are called specific facts, that " the prisoner stole the par-
ticular gelding mentioned in the information, and that particular
gelding was either the propertyof Nicoll and others, or it was
the property of the corporation, and we don't know which."
If they had found that, it seems to me, we would have been
bound to say the verdict is bad. The only basis on which I
think we have the right to deal with this case is that the Judge
must be deemed to have reserved aU questions of law which he
puts in his special case clearly and unambiguously, and this
Court should not allow injustice to be done. In that view of
this case I think that the learned Judge was wrong, and that
the finding was bad. The only way it could have been done,
probably is as in the case of B. v. M'Gee (6 Q.L.J. 151). Had
the jury found them guilty on both counts, and had the District
Court Judge taken the precaution, as the learned Judge in that
case, to give separate sentences on each count, this Court could
perhaps set aside the sentence on one count and allow the sentence
on^the other to stand. But had he given a joint sentence, as
has been done in this case, I don't see how the sentence could
stand, because it would be impossible for this Court to say how
much of the sentence was with reference to the good finding and
how much with reference to the bad. I think this is a very
CEIMINAL REPOETS, 1860-1907. 323
important decision with reference to the point whether or not R^oina^awley
"this Court is bound to confine itself within the categorical questions Real J.
put at the end of any case stated by a learned Judge or by justices.
I think that the Court is not so bound ; and I think that in this
■case all the circumstances exist which have been referred to by
my brother Cooper as necessary to enable this Court to deal with
the matter. For that reason I think that the conviction should
be quashed.
Gbiffith C.J. : The decision is that the conviction will be Griffith C.J.
affirmed.
Solicitor for prisoner : R. J. Leeper.
[Full Couet.]
REGINA V. WISHER AND ANOTHER.
17 Q.L.J. 52 ; N.C. 23.— Note.— 29 Vic, No. 6, ss. 41 and 48 are repealed, see now
ss. 409-412 of Criminal Code. As to reservation of point by Judge, see now
s. 668 of Criminal Code.]
Crown case reserved — Larceny Act of 1865 (29 Vic, No. 6), ss. 41,
48 — Charge and sentence for different offences — Right of
District Court Judge to state special case.
W. and L. were charged by information at the District Court, Rockhampton,
with robbery. The evidence showed that they had committed the oflfence in
■company. They were found guilty and sentenced to terms of imprisonment,
and to a whipping and a flogging respectively. No objection was taken to the
■sentence by counsel for prisoners. The section under which they were charged
{s. 41) does not authorise whipping or flogging as a punishment, although s. 48,
dealing with robbery in company, does so. The error was not discovered until
after the sittings of the Court had been closed, when the District Court Judge,
discovering the error, reopened the Court, respited the sentences, and of his own
motion stated a case for the Full Court.
Hdd, that the sentences must be amended by striking out so much thereof as
directed the prisoners to be whipped or flogged.
Held, also, that the District Court Judge had power to state the case, although
jio formal reservation of the point had been made at the trial.
Cbown Case Reserved by Judge of the District Court at
Rockhampton, setting out the facts appearing in the head-
note, and raising the questions : (1) Whether he had power to
pass the sentences he did pass ? (2) Whether the whole or any
1896.
4th August.
Grigilh C.J.
Cooper J.
Real J.
324
QUEENSLAND JUSTICE OF THE PEACE.
Eegina w. WisHEB portion of the sentences Avas valid ? (3) What order did the Full
AND Another. i, , . ■, ^ i „
Court think fit to make ?
The facts appear fully in the judgment of the learned Chief
Justice.
Butledge, for the Crown : This is a special case raising a question
as to the validity of sentences passed by him on two prisonera
at Rockhampton.
Cooper J. : But how does this case come before us ? I see
by looking at the case that the prisoners' counsel did not ask
for the reservation of any points at the trial, and the Judge can
only state a case reserving points raised at the trial.
Hutledge : The Crown were prepared to adopt that argument,
but it appears on the authority of B. v. Brown (24 Q.B.D. 357) and
B. V. Pieremont (2 Q.L.J. 93) that the learned District Court
Judge had power to state the case. Assuming, then, that the-
case is properly before the Court, the Crown submit that the
words of the information are sufficient to make it a good informa-
tion for an offence under s. 48 of the Larceny Act, for which
offence whipping and flogging might be inflicted. In any event
that part of the sentence which imposed imprisonment should
not be invalidated.
■ Prisoners (in person) offered no arguments.
Griffith C.J. Gkiffeth C.J. : The prisoners were jointly indicted at the
District Court at Rockhampton upon a charge of assaulting one
Richard Jack, and violently stealing from him a certain sum of
money. It appeared on the evidence that they committed the
offence in company, and they might have been charged under s.
48 of the Larceny Act -with doing so. But they were not. If
they had been charged with robbery in company they would have
been liable under s. 48 to a much more serious punishment than
can be inflicted under s. 41, under which they were charged. If
the charge made against them necessarily meant that they com-
mitted the offence in company, probably the sentence would
have been correct. But it is quite clear that the offence of rob-
bery may be jointly committed by two persons without being
in company. One might have been an accessory before the fact,
or might have been occupied in watching some distance off.
Under those circumstances two persons might be found guilty of
being jointly concerned in committing the offence. It is clear,.
I think, that the offence of which the prisoners were convicted
was robbery — not necessarily in company. They could therefore
CEIMINAL EEPORTS, 1860-1907.
325
Griffith C.J.
only be sentenced for that offence, and the punishment for that Kkginad. Wisher
' jr ^^j, Another.
ofience does not include flogging or whipping, which was part of
the sentence. We have power to amend the, sentences, and I
think the proper order to make under the circumstances is that
the sentences be amended by remitting so much as directs the
prisoners to be flogged or whipped.
CooPEE and Real JJ. concurred.
Cooper J.
Eeal.l.
[Brisbane Ceiminal Sittings].
REGINA V. LONGLAND.
[7 Q.L.J. 56 ; N.C. 24.— Note.— See now s. 611 ol Criminal Code.]
Criminal law — Juror — Time of challenge — Judge's right to dismiss
jury.
During the swearing of the jury, on the trial of a prisoner for murder, after one
juror had been sworn, a juror being called came forward and took the book in his
hand, and, the tipstaff having recited the oath to him, informed the Court that he
was opposed to capital punishment and that, in the event of his being sworn,
he would not consent, under any circumstances, to a verdict involving capital
punishment. Counsel for the Crown then offered to challenge the juror for cause,
but counsel for prisoner objected that the challenge was not in time.
Gbimtth C.J., on the authority of Winsor v. The Queen (L.R. 1 Q.B. 390)>
dismissed the jury so far as it had been constituted, and directed a fresh jury
to be sworn.
Semble, that a juror may be challenged at any time before he has done any act
signifying his assent to taking the oath.
Teial of Jonathan Longland on the charge of the murder of
Mary Longland.
During the swearing of the jury when one juror had been sworn,
a juror being called came forward and took the book in his hand.
After the tipstaff had recited the oath to him he objected to take
it, saying that he was conscientiously opposed to capital punish-
ment, and that in the event of his being sworn he would not con-
sent, under any circumstances, to a verdict involving capital
punishment. He further stated that he had objected to take the
oath at the earliest time at which he thought he was permitted to
do so.
Rutledge, for the Crown, asked that the juror might be directed
to stand aside.
1896.
lOth August.
Griffith C.J.
826 QUEENSLAND JUSTICE OF THE PEACE.
Eeoixa 0. Blair, for prisoner : The challenge is not in time. The juror
LoNGLAND. ^^^ actually taken the book in his hand, and the rule is that the
challenge must be made before the juror actually takes the book.
Griffith C.J. : That is the rule as regards peremptory chal-
lenges. Is it the rule as to challenges for cause ? There is no
doubt that the challenge should come before the book is placed
in the jviror's hands, but at the last sittings of the Criminal Court
at which I presided I decided that when a man puts out his hand
to take the book and touches it, but it has not been handed to
him, it is not too late. But in this case the book was placed in
his hands and the oath was recited to him. Everything was done
except taking it.
Griffith C.J. Griffith C.J. (after consulting Real J.) : I have had the
advantage of consulting my brother Real upon this point. I am
disposed to think, and so, as I understand him, is he, that when
a juror has done no act on his part indicating an assent to the
taking of an oath, it is not too late to challenge him. Now, as
I understand from the juror, there was no act of assent on his
part, but he took what he believed the earUest opportunity of
refusing to take the oath. H,e said, in effect, that if he went
through the form of taking the oath, he would not feel bound by
it. I think that is in effect a refusal to take the oath in any
intelligible sense, and if a juror will not take the oath, of course
he cannot be on the jury. But, assuming the juror to be on the
jury, and that it is too late to challenge him, there is another way
of regarding the matter, which is quite free from doubt. The
judge may at any time discharge a jury if in his opinion there is
a necessity to do so. Now, this juryman has told us in effect that
if he is on the jury, whatever the evidence may be, the trial will
be merely an idle form. I think that such an occasion as this
is an occasion on which a necessity arises for discharging the
jury. I therefore discharge the jury as far as it is already formed,
and ask the gentleman already in the box to leave it. He will
then be called again, and sworn in in the usual manner. The
authority for the discharge of a jury whenever the necessity
arises is Winsor v. The Queen (L.R. 1 Q.B. 390).
The juror already sworn was discharged ; the impanelling of
a jury begun de novo, and he was again sworn in his turn.
Solicitors for prisoner : Bernays & Osborne.
CKIMINAL EEPOKTS, 1860-1907. 327
[Brisbane Criminal Sittings.]
REGINA V. CHAMBERS AND ANOTHER.
[7 Q.L.J. 64 ; N.C. 27.— Note.— See now ss. 571, 572 of Criminal Code.]
Criminal law — Error in information — Amendment — Practice.
1896
Sth May.
Cooper J.
An information charging a prisoner with committing an offence at a date which
l.acl not then arrived was allowed to be amended, although the eror was not
discovered until after the Crown Prosecutor had opened the case for the Crown.
After the amendment had been made, the trial was proceeded with, and the
prisoner was not recharged nor was a fresh jury sworn on the amended informatior..
Trial of Thomas Chambers and Jane Brooks, on a charge of
procuring abortion.
The information, which was presented on Sth May, 1896,
charged the defendants with committing the offence in November,
1896. The error was not discovered until the Crown Prosecutor
was opening the case for the Crown, when the Judge (Cooper J.)
directed his attention to the defect.
Bviledge applied for leave to amend the information by substi-
tuting 1895 for 1896, as the year in which the offence charged
was committed.
Ulair for prisoner Chambers, objected, on the ground that as
no offence had been disclosed by the information, the case differed
from the cases in which such amendments were allowed by the
authorities, as in all those cases an offence had been disclosed.
Cooper J. : I do not like to stop the trial at this stage, and I Cooper J.
will allow the amendment to be made. I wUl, however, if Mr.
Blair desires me to do so, reserve the point and state a case for
the consideration of the Full Court.
The trial was then proceeded with, the prisoners not being
rearraigned, nor the jury resworn.
The prisoners were found not guilty.
Sohcitor for prisoner Chambers : H. B. Lilley.
Solicitors for prisoner Brooks : Unmack & Fox.
328
QUEENSLAND JUSTICE OP THE PEACE.
1896.
13th August.
Griffith C.J.
Griffith C.J.
[Brisbane CEnnNAL Sittings.]
REGINA V. FINLAY.
[7 Q.L.J. 65 ; N.C. 32.— Note.— See now ss. 486, 487, and 488 (IV.) ol Criminal
Code, and compare s. 126 ol Commonwealth Post and Telegraph Act (No. 12
of 1901).]
Criminal law — Admission of evidence — Res inter alios.
On the prosecution of a prisoner on a charge of forging the name of the payee
of a post office money order, the letter of advice or authority written by the
sending post office to the office at which the order was payable held to be admissible
against the prisoner.
Trial of William John Finlay for forgery.
The prisoner, who was undefended, was charged with having
forged the name of William Finlay to a post office money order,
which was intended to be sent to the said Wilham Finlay.
The practice of sending and paying money orders sufficiently
appears in the judgment of the learned Chief Justice.
During the case for the Crown
Rutledge for the Crown, tendered the letter of advice or authority
from the sending post office to the office at which the money order
was payable.
Rutledge : The letter is admissible. It is a necessary part' of
the money order, and without it the money order is unintellig-
ible. Moreover, the person who presented the money order
had necessarily to give the name of the person mentioned in the
letter of advice as sending the order, which was equivalent to
his being shown the letter, and being asked to read it.
Griffith C.J. : I think the document is admissible. It might
be objected that it is apparently res inter aZios^that is to say,
that the document is one with which the prisoner had nothiag
to do. Assuming that a document is one of which the accused
person knows nothing, it may still be admissible in evidence.
There are some facts which can only be proved by a written
document. As I understand the evidence, the course of practice
between the Post Office here and other countries is that the Post-
master-General receives, as agent of the Post Office or Postmaster-
General of the sending country, authority to pay the sum men-
tioned in the order to the particular person named in the letter of
advice. The authority of the Postmaster-General in this case
was therefore to pay the sum of 10s. to the person named in the
letter of advice and to nobody else. I think it is material to prove
CRIMINAL REPORTS, 1860-1907.
329
that that was so, and that fact can only be proved by the
document. I think that it is admissible on that ground. I
think it is admissible also, though I am not quite so sure about
it, on the ground that it was referred to in the document put
forward by the prisoner. By presenting the post office order
and asking for money, the person who presented it virtually said,
" I am the person mentioned in the document in your hand."
That being so, I think the document to which the post office order
referred and to which the person presenting it must be taken to
have referred, is admissible in evidence.
Begina v. Finlax.
Griffith C.J.
[ROCKHAMPTON ClVlL SITTINGS.]
THE QUEEN v. JAMES.
17 q.L.J. 148 ; N.C. 90.— Note.— See R. v. Vos (7 Q.L.J. N.C. 74) post ; and B. v.
Malone (1903 S.R.Q. 140) post.]
Bail — Criminal law — Application for admission of prisoner to
bail — Discretion of Judge — Capital offence.
The principles governing the exercise of the discretion of a Judge to admit
to bail a prisoner charged with a capital offence considered.
Application to make absolute an order nisi to show cause
why Richard Henry James, a prisoner charged ■ndth the offence
of rape, should not be admitted to bail.
The prisoner had been committed for trial on the charge of
having committed rape, and an order nisi had been granted
by Power J., calling on all parties interested to show cause why
he should not be admitted to bail.
All -the facts and argument appear in the judgment of the
learned Judge.
Walsh, for prisoner, to move the rule absolute.
No appearance for the Crown.
Power J. : In this case the prisoner is charged with having,
on the 13th of December last, committed rape on CaroUne Cann,
at Ilfracombe, and on the 20th of this month I granted a rule
nisi, on the appUcation of Mr. Walsh, calling on all parties con-
cerned to show cause why the prisoner should not be admitted
to bail. Mr. Walsh now moves the rule absolute. The Crown
is not represented. I have to consider whether, in the exercise
of my discretion, the prisoner should be admitted to bail.
1897.
87th January,
Pmoer J,
Power J.
830 QUEENSLAND JUSTICE OF THE PEACE.
Begina v. James. The offence with which the prisoner is charged is in this colony
Power J. ^ capital offence. I, of course, ofier no opinion on the evidence.
It is sufficient for me to know, as I have discovered to-day from
an affidavit filed by Mr. Walsh, that a true bill has been found
by the Crown Prosecutor. A Judge of the Supreme Court has
power to admit any person to bail in a capital felony. The
question is : When and under what circumstances he should
exercise that discretion ?
There are a number of previous decisions on the subject, and
I think I ought to be guided by them. The first case is that of
R. V. Scaije (10 L.J.Q.B. 302) so far back as 1841. In that case
first of all, an indictment had been preferred against the parties,
who were charged with felony. They were charged with having
certain coining miUs in their possession at Manchester. A bill
had been found by the Grand Jury ; but the trial did not take
place at the assizes, but the prisoners were apprehended on a
bench warrant. A rule nisi for admitting them to bail was
obtained. The case was adjourned, and, strange to say, for a
similar reason to this. Lord Coleridge said : " The question
seems to me to assume a different character now that the case
has been before the Grand Jury. You are now quite certain
that the parties will be required to take their trial." I adjourned
this case to ascertain whether a true bill was found or not, and I
find a true bill wiU be found, and know that a trial will take place.
So perhaps it was discreet I did adjourn to get further information.
Lord Coleridge said : " The offence is serious, the punishment
considerable, and the evidence strongly presumptive of guilt." —
I do not say for one moment that the evidence in this case is
strongly presumptive of guilt. — " It is also to be observed that
this is an application when a true bill has been found by the
Grand Jury against the prisoners, and that circumstance has been
held material by Lord Abinger in R. v. Chapman (8 C. & P. 558),
and by my brother Patteson in R. v. Gutteridge (9 C. & P. 228)
on this ground — that there is no longer any doubt that the trial
will take place, in which case, it becomes so much the less Hkely
that the party should wish to expose himself to the risk of a
trial." That seems to me to be the earliest case on the subject.
The second case seems to be R. v. Richard Andrews (13 L.J. (M.C.)
113). I think it is sufficient if I read the head note : " Where
a true bill for murder has been found against a prisoner by the
Grand Jury, and the trial. was postponed in consequence of the
absence of material witnesses for the prosecution, the Court
CEIMINAL REPOETS, 1860-1907. ' 331
refused to entertain the application to admit him to bail. The Bebina u-jJames.
Court will in no case admit to bail where a true bill for a capital Power J.
offence has been found against the prisoner by the Grand Jury."
I need not refer any further to that case. The next case is
Barronet v. Allain (1 E. & B. 1). The marginal note to that case
is this : " The Court has a discretion to admit accused persons
to bail in all cases ; but in exercising that discretion the nature
of the charge, the evidence by which it is supported, and the
sentence which by law may be passed in the event of a conviction,
are, in general, the most important ingredients for the guidance
of the Court, and when these are weighty the Court will not
interfere. Four foreigners were committed on the coroner's
inquest and by the warrant of justices to take their trial for wilful
murder committed in a duel. Two of them, when before the
magistrates, avowed that they acted as seconds of the deceased.
Application was made on their behalf to the Court to admit them
to bail, on affidavits, by these prisoners, that they had acted
only as seconds ; that the duel was fair ; that they were
foreigners, and ignorant of the law ; and beUeving they were
bound, as men of honour, to act as they did ; and that acting as
seconds was not punishable in their own country ; and they
pledged themselves, in the event of being admitted to bail, to
abide their trial. Held — that assuming these facts to be accurate,
they afforded no ground for the Court interfering to bail prisoners-
proved by their own confession to be guilty of a capital offence."
Of course there has been no admission of guilt here. In that
case Lord Campbell made these observations : " I think we can
look only to the nature of the charge, which is, in this case, a
capital offence, and to- the evidence, which, in this case, is a con-
fession. On this evidence, if not altered, the verdict must be
guilty." In this case I may state, without expressing any
opinion, that if the evidence of the woman (Mi's. Cann) is believed,
of course, there can be only one verdict. I do not say that it
ought to be beUeved or that it will be believed ; but, as Lord
Campbell says, if " the evidence is not altered, the verdict must
be guilty. ... I hope that the circumstances may prove
such that execution of the sentence may be avoided ; but sentence
of death must be awarded on such a verdict." So it is here. If
this man is found guilty, there is only one sentence, according
to the law of this colony, which could be pronounced, and that
is sentence of death ; and I may state in my own experience I
have known two cases where that sentence was pronounced and
332
QUEENSLAND JUSTICE OF THE PEACE.
Eegina v. James, where it was carried out. Those were the cases of Jacky Camp-
PowCT J. ^^11 ^* Ipswich, and, I think, a man named Murphy [Byrne (?)]
at Brisbane. Further, Lord Campbell says : " No instance
has been brought before us in which any such step as we are now
asked to take has been taken by this Court or by any Judge."
In the same case Mr. Justice Coleridge, as he was then, said :
" Then we are told that the sentence of death will probably not
be executed. I think, however, that we must look to. the legal
consequences of a conviction, and not speculate on the probable
mercy of the Crown." That is my opinion, too. Apart from that,
as I have already pointed out, there are two instances, at aU
events, in which sentence of death was executed in Queensland.
Mr. Justice Erie, I think, puts the matter very clearly. He
says : I take the principle on which the Court acts to be that,
where the charge is of a crime of the highest magnitude, the
evidence clear " — I say, without expressing any opinion whatever
as to any further evidence that may be brought before the jury
which will try the case, that it is clear as it stands on the
depositions- — " and the punishment is the highest known to the
law, the Court should not interfere." This is the last case I will
refer to — In re Robinson, which is reported in Volume XXIII.
of the Law Journal (new series) . The marginal note is this :
" On an application to bail a prisoner charged with a criminal
offence, the test to govern the discretion of the Court is the
probability of the prisoner appearing to take his trial ; but
in applying that test, the Court will not look to the character
or behaviour of the prisoner at any particular time " — that is
why I did not take any notice of the affidavit as to character
put in by Mr. Walsh. A man may be thoroughly respectable
up^till a certain time — " but will be guided by the nature of
ihe crime charged, the severity of the punishment that may be
imposed, and the probability of a conviction. Therefore, when
the evidence was strong against the bankrupt committed to
prison on a charge of concealing a part of his estate, which is an
offence subjecting the party convicted to transportation for life,
the Court refused to allow him to be bailed." As I have pointed
out, this is a far more serious case. I can only look at the law
as it stands in Queensland. This is, as I have already said,
a capital offence. Mr. Justice Coleridge, in delivering judgment
in this case — which appears to be the latest case on the point
— said : " The test, in my opinion, of whether a party ought to
be bailed, is whether it is probable the party will appear to take
CRIMINAL REPORTS, 1860-1907. 333
Ms trial. I know that I have been thought to go further than Regina k^Jambs.
other members of the Queen's Bench ; but I do not think there Power j,
is any real difference between them and myself, for though I
lay down that test, I think it ought to be Umited by the three
following considerations. If you want to know whether a party
is Ukely to take his trial, you cannot go into the question of his
character or of his behaviour at any particular time, but must be
governed by the answers to three general questions. The first
is — What is the nature of the crime ? Is it grave or trifling ? Here
the prisoner's crime, which is that of concealing his effects, is of
the heaviest character. The second question is — What is the
probability of a conviction ? What is the nature of the evidence
to be offered by the prosecution ? Here it is very strong. Though
the circumstances admit of the observations made by counsel
against their conclusiveness, yet the prisoner does not suggest
them himself, nor does he deny his guilt " — here the guilt is
denied. — " The third question is — Is the man Uable to a severe
punishment ? " — I need not refer to that again. I have already
mentioned what the punishment is — " Now our laws know of
hardly any secondary punishment so heavy as that fixed for
this offence. Tried by these tests, I think I ought not to allow
the prisoner to go free,"
I am of the same opinion. I do not think I should allow a
prisoner to go free on a charge of this kind, more particularly
as he has to wait only a very short time for his trial, and he is in
no way embarrassed, because, under s. 114 of The Justices Act
of 1886, the Minister can admit him to bail. Section 114 says :
" No justice shall admit any prisoner to bail for treason or a
capital offence, nor shall any person charged with any such
offence be admitted to bail, except by order of the Minister " — -
the Minister is defined to be the Colonial Secretary, and is now,
I presume, the Home Secretary — " or of the Supreme Court, or a
Judge thereof." So, as far as my reading of that section goes,
the Minister, who, probably, has better opportunities of getting
at the facts of the case than I have, may, notwithstanding my
decision to-day, admit to bail. I point this out so that the
prisoner may be in no way prejudiced by my judgment to-day.
The case of R. v. Clancy (unreported) has been referred to. I
regret there has been no appearance of the Crown, because my
recollection of that case — in which I happened to be Crown
Prosecutor — is that there was no true bill found.
Walsh : That is so. No true bill was found.
384
Eegina r. James.
Power J.
QUEENSLAND JUSTICE OF THE PEACE.
Power J. : So that case is no precedent, even were I inclined
to follow precedents in this case. The only other case of a capital
nature I know of where bail was permitted, was the case of R. v.
Wheeler (unreported) some twenty years ago, when the prisoner
was charged with murder. He was admitted to bail by Mr.
Justice Lutwyche, and did not appear to take his trial, forfeited
his bail, and has never been heard of, so far as I know, from that
day to this. So, under all the circumstances, and considering
particularly that the prisoner has only to wait until the 16th
March, I do not feel justified in admitting him to bail. I there-
fore discharge the rule.
Solicitors for applicant : Fitzgerald & Walsh.
1896.
13th August.
Griffith C.J.
REGINA V. GOLDSWORTHY.
[7 Q.L.J. N.C. 42.— Note.— See now s. 222 of Criminal Code.]
Criminal law — Evidence — Admission of evidence of svbsequent
conduct of prisoner.
On the trial of a prisoner charged with committing incest
with his daughter, evidence was admitted of the subsequent
perpetration of the same offence on different days previous to
the complaint of the daughter, it appearing that the prisoner
had threatened the daughtei- on the first occasion.
R. v. Reardon (4 F. & F. 76) followed.
1894.
lith December.
Griffith G.J.
THE QUEEN v. VOS.
[7 Q.L.J. N.C. 74.— Note.— See R. v. James (7 Q.L.J. 148), ante p. 329.]
Criminal law — Bail.
The principles for consideration on an application for bail
on a criminal charge are (1) the probability of the prisoner appear-
ing to take his trial ; (2) the nature of the crime charged ; (3) the
severity of the punishment ; and (4) the probability of a con-
viction.
In re Robinson (23 L.J., Q.B. 286) followed.
CRIMINAL REPORTS, 1860-1907.
335
R. V. SPENCE.
[7 Q.L.J. N.C. 81.— Note.— See ss. 557-559, and 650 ol Criminal Code.]
Justices Act (50 Vic, No. 17), s. 138 — Place of sentence — Warrant.
It is the privilege of a prisoner to be sentenced at the place
where he is committed, if a Court is held there. The Court
should not be altered merely to save expense.
The warrant should mention the gaol to which the prisoner
is to be sent.
1891.
31st August.
Harding J.
[Pull Cottbt.]
R. V. MORAN.
[7 Q.L.J. N.C. 101.— Note.— See s. 398 (VI.) ot Criminal Code, and definition of
clerk or servant In s. 1.]
Criminal law — Embezzlement — Servant.
Where upon an information for embezzlement it appeared
that the prisoner had in pursuance of written instructions from a
firm effected a sale and received the money arising therefrom,
and it further appeared that his instructions contained an intima-
tion that in consideration of his faithfully effecting such sale
the firm would remunerate him at the rate of £3 per week :
Held, on a Crown Case Reserved, that the prisoner could be
convicted of embezzhng the moneys arising from such sale.
[Full Coubt.]
R. V. RICHERT.
[7 Q.L.J. N.C. 107.— Note.— 29 Vie., No. 5, s. 42, is repealed, see now s. 468 of
Criminal Code. 29 Vic, No. 6, ss. 10 and 11 are repealed, see now ss. 398
and 402 of Code. As to larceny see now s. 391, and as to receiving, see s.
433 of Code. See also s. 568 (4) of Code.]
Information — Oattle stealing — 29 Vic, No. 5, s. 42 — 29
No. 6, ss. 10, 11 — Separate counts.
Vic,
In cases where a prisoner is charged with stealing cattle,
where possible there should be separate counts for stealing under
29 Vic, No. 6, s. 10 ; for killing with intent to steal under s. 11 ;
for killing under 29 Vic, No. 5, s. 42 ; also for larceny of meat,
skin, &c., and for receiving live animals ; and also for receiving
live animals, dead animals, meat, skin, &c.
1876.
37th April.
1877.
88th November.
336
QUEENSLAND JUSTICE OF THE PEACE.
1885.
6th November.
Cooper J.
R. V. WILLIE.
[7 Q.L.J. N.C. 108.]
Trial — Aboriginal — Inability of interpreter to charge accused.
Whbeb, on the trial of four aboriginals on a charge of murder,
no interpreter could be found competent to communicate the
charge to the accused, the prisoners were ordered to be discharged.
1883
3rd December.
Hardivii A.C.J.
E. V. GRIMES.
17 Q.L.J. N.C. 109.— Note.— See B. v. KennlfE (1902 Q.W.N. 76) post.]
Trial — Adjournment.
The rules for an adjournment of a trial are : (1) That it must
be shown that a witness is really necessary, and that it appears
to the Court that he is so ; (2) that the party who appears and
asks for an adjournment has been guilty of no neglect ; (3) that
the witness can be had at the time to which the trial is postponed.
1887.
6th April.
ilein J.
R. V. WILSON.
[7 Q.L.J. N.C. 110.]
Trial — Prisoner — Prisoner 'permitted to sit on the floor of the Court —
Prisoner's dock.
A PERSON charged with a criminal offence cannot claim as of
right to be allowed a seat on the floor of the Court, but applications
may be made to the Court for that purpose under special cir-
cumstances. Where a prisoner was charged with misappropria-
tion as a director, and there were special reasons for his being
allowed to sit with his counsel, he was allowed to sit at the bar
table.
CRIMINAL EEPOETS, 1860-1907. 337
R. V. SHAW.
[7 Q.L.J. N.C. 111.— Note.— See R. v. Freeman, (6 Q.L.J. 281), ante p. 300 ; R. v.
Johnstone (1907 S.R.Q. 155), post.]
Juror — Challenge by Crown — Challenges for cause.
When on a criminal trial the jury panel has been twice
exhausted and a jury has not been sworn, the Crown can only
challenge on the third calling of the panel for cause.
1885.
3rd June.
Harding J.
R. V. ALBERG.
[7 Q.L.J. N.C. 112.— Note.— 50 Vic, No. 14, is repealed, see now s. 656 (5) of
Criminal Code.]
Sentence — Offenders Probation Act, 1886 (50 Vic, No. 14)- —
Unlawfully wounding.
Where a prisoner had been convicted of unlawfully wounding,
his sentence was suspended under the Act 50 Vic, No. 14, and
he was ordered to pay £10 compensation.
1893.
1st June.
Griffith C.J.
[Full Court.]
R. V. SCHLOSS AND MAGUIRE.
18 Q.L.J. 21 ; N.C. 22.— Note.— 55 Vic., No. 24, ss. 6 and 21, are repealed, see now
ss. 215, 216, and 350 of Criminal Code.]
Criminal Law Amendment Act of 1891 (55 Vic, No. 24), ss. 6, 21 — ^^97.
Indecent assault on a girl under the age of 14 years — Defence
of reasonable belief that girl was over the age of 14 years.
Griffith O.J.
The defence of belief on reasonable groimds that a girl is not under the age of Cooper J.
14, which is allowed by s. 6 of the Act, 55 Vic, No. 24, to a charge of unlawfully
carnally knowing a girl under 14, applies also to a charge of indecent assault.
Special Case stated by Griffith C.J.
S. and M. were jointly indicted, S. on a charge of committing
a rape upon H., and M. with aiding and abetting him to commit
the offence. It appeared on the evidence that H. was a girl
under the age of 14 years. The jury found : (1) That S. was
guilty of unlaM'fully carnally knowing a girl under the age of
12th March and
7th June.
Real J.
838 QUEENSLAND JUSTICE OP THE PEACE.
K. V. ScHLoss AND j^ ^j^jj ^qj. consciit ; (2) that he was guilty of indecently assault-
'■ ing a girl under the age of 14 with her consent ; (3) that M.
aided and assisted S. in committing the indecent assault ; and
(4) that both prisoners believed on reasonable grounds that H.
was not under the age of 14. The evidence establishing the
carnal knowledge was the same as the evidence establishing the
indecent assault. Griffith C.J. directed a verdict of indecent
assault to be entered against S., and a verdict of guilty of
aiding and assisting in the assault to be entered against M.,
and sentenced both prisoners to six months' imprisonment
with hard labour, but reserved for the consideration of the
Pull Court the question whether, on the finding of the jury that
the prisoners believed on reasonable grounds that H. was not
under the age of 14, the convictions were right.
Stumm for prisoners : The object of s. 21 of The Criminal
Law Amendment Act of 1891 was to extend the legislative pro-
visions then in force for the protection of young girls against
debauchery, and to protect them against all kinds of indecent
treatment. The only efEect of s. 21 is that if the child is under
14 the accused must show something more than mere consent.
But it is sufficient to show that it would not have been an offence
to have gone further. Before The Criminal Law Amendment
Act of 1891 there could be no indecent assault with the girl's
consent. It is a general rule that a guilty mind is an essential
ingredient in a crime, and that an alleged offender is deemed
to have acted under that state of facts which he in good faith and
on reasonable grounds believed to exist when he did the act
alleged to be an offence, unless in the statute creating the offence
a contrary intention appears. [Stephen's Digest of Criminal
Law (5th Ed. Art. 35, p. 27), B. v. Prince (L.R. 2 C.C. 154, at p.
171), R. V. Gibson (11 V.L.R. 94).] No contrary intention
appears in the Queensland Statute. Section 6 of the Act adds
force to the contention that the general rule must apply in this
case. . Section 21 must be read with^ s. 6, the statute deahng
with one subject. The Legislature considers indecent assault
of equal gravity vidth the offence under s. 6, the maximum punish-
ment being the same. If charged with carnally knowing, the
prisoners would have been acquitted, having shown a suffici^t,
defence ; and the jury on the same evidence having fouiid,
in effect, that the indecent assault was the carnally knowing, the
prisoners should not be placed in a worse position than if charged
with what they actually did. The indecent assault consisted
CEIMINAL REPORTS, 1860-1907.
339
Griffith C.J.
of an act to which the prisoners established a defence, which the ^' ^'^°g^^^ ^"^
Legislature has said is a sufficient defence. The conviction
should therefore be quashed.
Rutledge, for the Crown : The prisoners being convicted of
the offence under s. 21 cannot claim to have the benefit of the
defence given by s. 6 to the cliarge of a different offence. If
charge had been of indecent assault, verdict would have been good
and belief would have been irrelevant, and the graver charge
includes the lesser. [He cited R. v. Paul (25 Q.B.D. 202).J
C.A.V.
7th June, 1897.
Griffith C.J. : The difficulty in this case arises from the
terms of s. 21 of The Criminal Law Amendment Act of 1891,
which provides that " It shall be no defence to a charge of indecent
assault on a young person under the age of 14 years to prove
that he or she consented to the act of indecency." The language
of that section is, of course, faulty. The term assault of itself
involves the notion of want of consent. An assault with con-
sent is not an assault at aU. The section, therefore, must be
taken to mean that it is no defence to a charge of an indecent act
committed with respect to a young person under the age of 14
years, which would be an offence if it were not consented to,
to show that the young person consented to it. The prisoners
were convicted under that section. They had been charged
with a graver offence, and it was proved in evidence that they
had done acts which would have constituted an offence under
s. 6 but for the provisions of that section, which make it a defence
to show that the accused person " befieved and had reasonable
■cause to believe that the girl was of or above the age of 14 years."
'The jury found that the prisoners believed on reasonable grounds
that the girl was of or above the age of 14 years. Section 6,
iowever, does not apply in terms to a case in which a man is
■charged with an indecent assault. If it does not apply at all,
there is an obvious anomaly. For although, if he had done
the more grievous act, a man could not be convicted if he believed
on reasonable grounds that the girl was of or above the age of
14, yet if he is charged with an indecent assault he might be
convicted, notwithstanding that he believed on reasonable
grounds that she was of or above that age. The general rule
established by the case of R. v. Prince (L.R. 2 C.C. 154) is that in
cases of this kind knowledge of the age of the girl is not material.
Unless, therefore, the qualification stated in s. 6 applies, there is,
as I have said, an obvious anomaly.
840
QUEEISISLAND JUSTICE OF THE PEACE.
b. v. schloss and
Magtjibe.
Griffith C.J.
It has often been said that where there is an apparent ambiguity
in a statute the best rule of construction is to consider what
was the common law, what was the state of the law when the
statute was passed, what were the defects in the law as it then
stood, and what course the Legislature appears to have adopted
to remedy these defects. Following that rule, a tolerably clear
solution of the difficulty may be arrived at. At common law
offences against women were regarded simply as assaults, and the
essence of the ofienoe was want of consent on the part of the
woman or girl. The woman was regarded as the absolute mistress
of her own person, and consent was, irrespective of age, an answer
to any charge of an attack upon her. An indecent assault was
an assault aggravated in a particular way. Rape was regarded
as an assault aggravated in a more serious way, but they were
both regarded as assaults, and the criminal liability depended on
the same conditions, whatever was the extent of the aggravation.
Then the Legislature appears to have thought that this protec-
tion was not sufficient, and many years ago they made provi-
sion for the protection of young girls against debauchery, by
providing that carnal knowledge of a girl under a certain age
should be an offence, irrespective of consent. The original class
of persons protected having been only those persons who pro-
tected themselves by refusing consent, another class was thus
created, of persons under a certain age, who were considered
incapable of protecting themselves, and mth respect to whom,
consent was made entirely immaterial. But that protection was
limited in its extent. As the law was first passed it only
applied to the case where the offender had actual carnal
knowledge or attempted to have carnal knowledge. It did
not, like the original law, put cases of mere indecent attack
on the person on the same footing as the graver offence. Obvi-
ously, therefore, there was an inconsistency in the law. Then
the Legislature intervened again by the Act now under consider-
ation, and their intention apparently was not only to extend the
protection previously afforded, but also to remove the inconsist-
ency and make the protection equally extensive whether the act
amounted to carnal knowledge or fell short of it, and consisted
only of an indecent attack on the person. The apparent intention
was to make the protection equally extensive in all cases in which
consent was made immaterial. Regarding the matter from that
point of view, we should expect to find some provision supple-
mentary to the provisions protecting young children from being
OEIMINAL REPORTS, 1860-1907.
341
actually debauched. And, so regarded, s. 21 appears to be merely
a supplementary provision, intended to make the protection
against indecent assault co-extensive in point of age with the
protection against carnal knowledge. It was not intended, I
think, to create a new offence altogether, which would be done if
it were construed as providing that indecent acts committed upon
a young person should be an offence even if committed with
consent, when they would not be an offence if accompanied by
more aggravated circumstances. Another way of regarding the
matter, perhaps, would be to read s. 21 in this way : "It shall
be no defence to a charge of indecent assault upon a young person
under 14 merely to prove that he or she consented." That is to
say, that mere consent is not to be a defence. At common law
mere consent was a complete answer, no matter what the age of
the child or woman. The Legislature now says that certain
persons shall be incapable of consenting to injurious acts of this
kind committed with respect to them. If, therefore, the child is
under 14, you must show something more than mere consent,
you must show capacity to consent to an act involving carnal
knowledge. Some qualification is obviously necessary, for
otherwise s. 21 would apply to a girl married under 14. The true
qualification, I think, is to be found from a consideration of the
iistory of the previous law ; that is to say, that this section is
intended to apply to all cases of indecent dealings with young
X)ersons, when carnal knowledge of them would be an offence.
If that is the true view, the conviction was wrong, and ought to be
quashed.
Cooper J. : I concur, and for the same reasons.
Real .J. : I concur, and for the same reasons.
Conviction quashed.
Solicitor for prisoners : J. G. McGregor, agent for W. H.
Summerville, Ipswich.
k. v. sohloss and
Maouire.
Gnffiith C.J.
Cooper J.
Real J.
842 QUEENSLAND JUSTICE OP THE PEACE.
[TowNSViLLE Civil Sittings.]
REGINA V. MURPHY AND HOBART.
L8 Q.L.J. 63 ; N.C. 46.— Note.— Sec. 37 ol 53 Vic, No. 12, is repealed, see now
s. 388 of Criminal Code, not identical.]
1897. The Defamation Law of Queensland (53 Vic, No. 12), ss. 37, 45—
7th, mil Avgitst. Prosecution by Attorney-General — Sanction of judge.
Chnbb J. Section 37 of The Defamation Law of Queensland does not apply to criminal
proceedings instituted virtute offirAi by the Attorney-General, as the Crown is not
specially named in the section.
Yates V. The Queen, 15 Cox C.C. 686, 14 Q.B.D. 648, followed.
Application under s. 37 of The Defamation Law of Queensland,
for an order calling on W. S. Murphy and C. B. Hobart, of Croydon,
printers, publishers, and proprietors of the Mining, News, Croydon,
to show cause why a criminal prosecution should not be instituted
against them for defamation.
A. M. Beaumont for the Crown.
C.A.V.
Chubb J. Chubb J. : This is an application made by Mr. Beaumont,
Northern Crown Solicitor, for the Attorney-General, on behalf of
the Crown, for an order calling upon W, S. Murphy and C. B.
Hobart, of Croydon, printers, publishers, and proprietors of the
Mining News, Croydon, to show cause why a criminal prosecution
should not be ordered to be instituted against them, under s. 37
of The Defamation Law of Queensland, for defamatory matter
pubUshed by them in the said paper on 20th May last, of and
concerning W. F. Morgan, G. Hepburn, and W. de Renzie Wilson,
Justices of the Peace, touching the administration of justice by
the said justices. On the application being made I intimated
my opinion that the statute did not apply to the criminal proceed-
ings instituted virtute officii by Her Majesty's Attorney-General,
but reserved my decision in order that I might look into the
authorities. Having done so, my view has been fully confirmed.
The section in question runs thus — " No criminal prosecution
shall be instituted against the proprietor or publisher or editor or
any person responsible for the publication of any periodical for
any defamatory matter published therein without the order of
a judge of the Supreme Court, made after notice to the person
accused, and after that person has had an opportunity of being
heard in opposition to the application for the order." This is
almost a literal transcript of s. 8 of the Imperial statute 51 and
CRIMINAL REPORTS, 1860-1907.
343
52 Vic, c. 64 (The Law of Libd Amendment Act, 1888). The
origin of this section is to be found in s. 3 of the Imperial statute
44 and 45 Vic, c 60 (Newspaper Libel and Registration Act, 1881)
which enacted that no criminal prosecution should be commenced
against any publisher, proprietor, editor or any person responsible
for the publication of a newspaper, for any Ubel published therein
without the written fiat or allowance of the Director of Public
Prosecutions in England, or Her Majesty's Attorney-General in
Ireland, being first had and obtained. Upon this last section it
was decided in Yates v. The Queen (15 Cox C.C. 686, 14 Q.B.D.
648), that the section did not apply to criminal informations filed
by leave of the Court. It was conceded by the counsel who
argued that case, and it is also abundantly clear from the obser-
vations of several of the learned judges, that ex officio informations
filed by the Attorney-General by virtue of his office, on his own
responsibility in exercising the prerogative of the Crown, were in
their opinion for various reasons, given by the learned Judges,
which T need not repeat, excluded from the operation of the
section. The present section differs from the former in substi-
tuting the order of a judge for the fiat of the officer there men-
tioned, but I think (apart from the special reasoning in Yates v.
The Queen as affecting the Attorney- General from the mere
language of the section), on the general grounds and reasoning
there appearing, the construction here must be the same. The
words " criminal prosecution " were in Yates v. The Queen held
to mean a prosecution by indictment or before a magistrate as
distinguished from a proceeding by criminal information. The
well-known rule of construction appUed, as regards the Crown,
to statutes, is shortly and clearly stated by Matthew J. at p.
690. " The general rule is well established that the rights of the
Crown shall not be bound or restrained by any statute unless it
be specially named." The Crown is not touched except by
express or necessary implication in any case where it would be
ousted of an existing prerogative or interest. [See Maxwell on
Statutes, 2nd Ed. 161, and cases cited in note (b).] The Crown
is not named in this section nor can it be drawn in by any neces-
sary implication. Section 45 saved aU privileges by law existing.
It is well known that this Act was drafted and carried through
ParUament by a no less experienced lawyer than the present
learned Chief Justice, and it is highly improbable that so import-
ant a matter as this escaped the observation of that eminent
authority. If Parliament intended to take away the prerogative
Begina v.
Murphy and
HOBABT.
Chubb J
844
QUEENSLANDr JUSTICE OF THE PEACE.
Beqin'a v.
mokphy and
HOBAKT.
Chubb J.
which, after all, is exercised for the common weal, it should, and
I think would, have said so in express and unmistakable terms.
The Attorney-General needs no authority from this Court to file
an ex officio information for defamation. The application is
therefore refused.
Solicitor : A. M. Beaumont, Crown Solicitor.
1897.
Slid and 3rd
November.
Griffith C.J.
Cooper J.
Real J.
[Full Court].
R. V. MOODY.
[8 Q.L.J. 102 ; N.C. 71.— Kote.— See ss. 4, 6, 29, 668, and 669 ot Criminal Code.
Criminal Practice Act is repealed. Offences against the Person Act ot 1867
s. 64, is repealed, see now s. 6 ot Criminal Code.]
Crown case reserved — Prisoner committed for sentence — Power of
judge to reserve point arising on depositions — Sexual offence by
boy under 14 — Practice where no offence disclosed by deposi-
tions—50 Vic, No. 17, s. 113.
A prisoner committed for sentence to the Criminal Sittings of the Supreme
Conrt on a charge of having committed an unnatural offence with a male, on his
arraignment on the charge before that Court, pleaded guilty to an attempt to
commit the offence, which plea was accepted by the Crown. Upon the depositions
taiien before the committing justices, it appeared that the prisoner was the pathic
in the offence, he having induced the agent, who was a boy under 11 years of
age, to do the act.
Held, that in the case of a prisoner committed for sentence and pleading guilty
the judge has power to reserve for the consideration of the Court a question of
law arising on the depositions.
Held, nlso, that sexual capacity on the part of the agent is a necessary element
in every offence involving carnal knowledge, and that, as it is a presumption of
law that that element is not present in the case of a boy under 14 years of agef
the prisoner could not, on the facts disclosed by the depositions, be convicted
either of the offence charged, or an attempt to commit that offence.
A plea of not guilty was ordered to be entered.
Ceown" Case Reserved by Griffith C.J. at the Rockhampton
Criminal Sittings.
William Moody was committed for sentence to the Criminal
Sittings of the Central Court on a charge of having committed an
unnatural offence with one W. F. The prisoner pleaded guilty
to the charge, but, on the suggestion of the presiding Judge
(Griffith C.J.) the Crown accepted a plea of guilty of an attempt,
CEIMINAL REPORTS, 1860-1907- . 345
and that plea was entered. The depositions taken before the ^- v.Mqovi.
•committing justices disclosed the facts appearing in the head note.
Griffith C.J. reserved for the consideration of the Court the
following questions : —
(1.) Whether, in the case of a prisoner committed for sentence,
and pleading guilty, a question of law arising upon the depositions
can be reserved for the consideration of the Supreme Court ; and
(2.) If so, whether, upon the facts appearing in the depositions
in this, case, the prisoner could be convicted of the offence with
which he was charged, or an attempt to commit that offence ;
and postponed judgment until after the decision of these questions,
and remanded the prisoner to custody.
Rutledge, for the Crown : With regard to the power of the judge
to reserve the point in question, the present case is distinguishable
from the EngUsh case of R. v. Clurk (L.R., 1 C.C. 54), inasmuch as
the statutory provisions with regard to the committal of prisoners
for sentence are peculiar to this colony, and the plea of guilty in
the inferior court may be regarded as merely an assent to the
truth of the statements of the witnesses, irrespective of the legal
effect of the facts assented to. A prisoner committed for sentence
is in the same position as a prisoner after verdict of guilty, but
before sentence, and as an examination by the judge of the
depositions taken in the lower court is necessary in order to
determine the proper punishment to be inflicted, any question of
law arising on the depositions is to be deemed as arising on the
trial, and, therefore, may be reserved for the consideration of this
Court.
With regard to the guilt of the prisoner on the facts disclosed
by the depositions, the case of R. v. Allen (1 Den. 364, 3 Cox C.C.
270) seems indistinguishable from the present case, and, on the
authority of that case, the Crown Prosecutor found a true bill.
Unfortunately, no reasons are given for the judgment in R. v.
Allen, and that case, moreover, is inconsistent with later cases,
especially that of R. v. Waite (1892, 2 Q.B. 600). In fact, all the
decisions, except R. v. Allen, seem to point to a recognition of the
doctrine that a boy under the age of 14 cannot commit an offence
of a sexual nature. He also cited R. v. Jacobs (R. & R. 231), R.
V. Ring (61 L.J. M.C. 116), R. v. Brown (24 Q.B.D. 357), R. v.
Collins (33 L.J. M.C. 177), R. v. Rexspere (1 Moo. C.C. 342), R. v.
Cousins (6 C. & P. 351).
The prisoner was brought up in custody.
C.A.V.
S4&
QUEENSLAND JUSTICE OF THE PEACE.
E. V. MooDT. 3rd November.
Griffith C.J. Gbifjith C.J. : In this case, the prisoner was charged with
an offence of a sexual nature, and was committed for sentence.
On his arraignment he pleaded guilty, but, at the suggestion of
the Judge, and with the consent of the Cro^vn, he pleaded guilty
to having attempted to commit the offence. On referring to
the depositions, it appeared that the other and active party to
the alleged offence was a boy under the age of 11 years, and I
reserved the question whether there could be a conviction under
the circumstances. The case is not distinguishable from the
case of B. v. Allen (3 Cox, C.C. 270). It is, indeed, the same case ;
and, in that case, a very strong Court held that the conviction was
good. It is, however, impossible to reconcile that case with the
case of R. v. Waite (ubi sup.), decided in 1892. It is absolutely
impossible to reconcile the two cases, and the question is
which should be followed. In my opinion, the law with
respect to offences of this character is that sexual capacity — that
is, the absence of impotence — is an essential element of the
offence. If that element is not present, there cannot be an
offence. It is a presumption of law that that element does not
exist in the case of a boy under 14 years. That is the law as
laid down by Hale, and that is the only principle, I think, upon
which R. V. Waite can be supported. In the present case, there-
fore, it is a presumption of law that the act alleged to have taken
place could not have taken place. It doe¬, however, follow
that the prisoner could not be convicted of an attempt to commit
the offence ; but, under the circumstances, it must, I think,
be taken that he knew that the boy was under 14 years of age,
and that he knew that it was impossible, in point of law, for
the offence that he was alleged to have attempted to commit
to be committed. I think a man cannot be charged with attempt-
ing to commit an offence which is impossible of being committed,
and which he knows to be impossible of being committed. There-
fore, I think that the prisoner ought not to have been convicted
either of the offence or of attempting to commit it.
Another question arises — whether under such circumstances
the question could be reserved for the opinion of this Court.
The procedure of committal for sentence is peculiar to Queens-
land. It is provided for by s. 113 of The Justices Act, which
enacts that when a defendant is committed for sentence, the Court
to which he has been committed shall, upon the arraignment,
and upon the production of the depositions and the defendant's
CEIMINAL REPORTS, 1860-1907.
347
statement, direct a plea of guilty to be entered, and pass sentence ^- "• Moody.
upon him according to law. It follows, therefore, that it is the Griffith C.J.
duty of the Court to require the production of the depositions,
and to examine them and the statement of the defendant, and
then to pass sentence according to law. The duty of examining
the depositions being therefore cast upon the Judge, I think that
any question of law arising upon that examination is a question
of law arising at the trial. I therefore think that the question
could be reserved for the consideration of the Full Court. The
Criminal Practice Act provides that upon the hearing of a case
the Court shall have power to hear and determine the question
reserved, and to reverse, affirm, or amend the judgment, or avoid
or arrest the judgment, or order judgment to be given in some
other Court, or make such other order as justice may require. 1
apprehend that it is the duty of the Court to do as far as possible
what the Judge at the trial ought to have done. Now, what
ought the Judge at the trial to have done if he had known the
law as we now know it ? Of course, he is supposed to have
known it. I think the Judge at the trial ought to have directed
the plea of not guilty to be entered, and left it to the Crown to
take such further steps by tiolle prosequi or otherwise as they
thought fit. And I think that it is competent for the Court now
to do what the Judge at the trial ought to have done — that is,
to direct the plea of guilty to be struck out and the plea of not
guilty to be entered. I think that under the circumstances that
is the proper order to make.
Cooper J. : I am of the same opinion, and for the same reasons. Cooper J.
Real J. : I agree with the judgment of my brother Judges RealJ.
reluctantly, because personally I would have come to a conclusion
entirely different from the learned Judges who have decided the
cases of R. v. Waite and the other cases to the like effect, on
which my learned brothers rely. That is to say, I entirely differ
from what appears to be the reasons and the grounds of their
decision in those cases. Under the old practice it was plain and
simple that emission was necessary to contribute the offence
of carnal knowledge, and it was also necessary to constitute the
abominable offence ; and a boy under 14 years of age under that
state of the law was held to be physically incapable of committing
the offence. The presumption of law was that he was physically
incapable. That state of the law has been altered. Section 64
of The Offences against the Person Act of 1867 provides that
348
QUEENSLAND JUSTICE OF THE PEACE.
E. V. Moody.
Real J.
Griffith C.J.
" Whenever upon the trial for any offence punishable under this
Act it may be necessary to prove carnal knowledge, it shall not
be necessary to prove the actual emission of seed in order to
constitute carnal knowledge, but the carnal knowledge shall be
deemed complete upon proof of penetration only."
I think, on the alteration by that Act, it was plain and simple
that the grounds of the former decisions as to incapacity were
gone, and the Legislature made the penetration constitute the
carnal knowledge. Therefore, if that was the state of the law,
as I interpret the Act, this offence could have been committed ;
but the recent cases, as late as 1893, have absolutely decided,
and, indeed, all the cases since the passing of that Act, that the
law as previously laid down still remains, and that a boy under
14 years is by law incapable of carnal knowledge. That being
so, and the Jndges consistently laying that down, and ParUament,
which must be taken to know that that is their view of the law,
not having interfered with it, I feel bound to come to the con-
clusion that my brother Judges have come to — that this boy
must be considered in law physically incapable of the offence.
Griffith C.J. : The plea of " guilty " will be struck out,
and the plea of " not guilty " entered, and the prisoner will be
remanded to the next sittings of the Central Court.
1897.
Sth November.
GriffltK C.J.
Cooper J.
Real J.
[Full Court.]
JONG SONG V. JOY HOY AND OTHERS.
[8 Q.L.J. 109 ; N.C. 79 Note.— See. 2 of 56 Vie., No. 3, is repesded.]
Criminal laiu — Prisoners charged jointly — Right of accused to give
evidence on behalf of fellow accused — 56 Vic, No. 3, ss. 2, 3.
Where two or more accused persons are jointly charged with an offence, each
of the defendants is a competent witness on behalf of the other.
Application on behalf of Joy Hoy to make absolute an order
nisi to quash a conviction before justices of the applicant on a
charge of having, with others, committed an assault on Jong
Song, on the ground that the justices had wrongfully refused to
admit evidence.
The appellant was, with others, charged before justices with
having committed an assault upon the respondent Jong Song.
CKIMINAL REPORTS, 1860-1907.
349
One of the accused was tendered as a witness on behalf of the
others, but the magistrate, being pressed to that course by the
respondent's sohcitor, refused to allow the evidence to be given.
The defendants were convicted, and an order nisi was granted
by Griffith C.J. to quash the conviction on the ground above
stated.
Lukin, for appellant, cited Criminal Law Amendment Act,
1892, s. 7 ; R. v. Payne (L.R. 1 C.C. 349) ; R. v. E. and I. Martin
(17 Cox C.C. 36).
The co7nplainant in person.
Griffith C.J. : Before the Act of 1892, it was clear, on the
authority of R. v. Payne (L.R., 1 C.C. 349), that one of two persons
jointly accused could not be called as a witness, on the ground
that a prisoner on his trial could be neither examined nor cross-
examined. The Evidence and Discovery Act of 1867 expressly
provided that rule of law. The Legislature in 1892, however,
repealed that proviso of s. 7, which corresponds to the EngUsh
enactment on which that decision was based. Everyone can give
evidence unless he is by some law forbidden to do so. There is
now no law to prevent the witness who was tendered in this case
from giving evidence. That practice has been followed in the
Supreme Court, and it is much to be regretted that it has not
been observed in the PoUce Court.
As the evidence was rejected on the objection of the com-
plainant's solicitor, when the justices would otherwise have
admitted it, the respondent should pay the costs.
Order absolute to quash conviction, with costs.
Cooper and Real JJ. concurred.
Sohcitors for appellant : Bouchard <fc Holland.
Jong Sonq v.
Joy Hoy ani>
Others.
Griffith C.J.
Cooper J.
Eeal J.
R. V. RUTH TIDBURY.
[8 Q.L.J. N.C. 111.— Note.— Sec. 42 of 53 Vic, No. 12, is repealed, see now ss.
660-662 of Criminal Code.]
Defamation — No bill filed — Defendant's Costs — 53 Vic, No. 12, s. 42.
The defendant was committed for trial for defamation on the
complaint of a private prosecutor. No true bill was found.
On an application by the defendant for costs against the private
prosecutor :
1898.
20th October.
Chubb J.
350
B. V. Ruth
TiDBDRT.
QU -^NSLAND JUSTICE OF THE PEACE.
Held, that the Statute 53 Vic, No. 12, only entitled a defendant
to costs when he is acquitted upon an information tried [s. 42 (1),
(3)], and that no information having been filed, and consequently
the defendant not having been tried and acquitted, the case did
not come within the provisions of the Statute.
1898.
lOth May.
Chubb J.
Chubb J.
REGINA V. CRAINE.
[9 Q.L.J. 47 ; N.C. 13.]
Criminal law— Trial — Atheist juror — Disqualification ^
Held, that a juror who has no religious belief is not competent to serve as a juror,
and that his name must be removed from the panel.
Trial of William Henry Craine for a rape.
A juror being called objected to be sworn. In answer to
questions put by the learned Judge, he stated that he had no
religious belef whatever, but was willing to pledge himself in any
words the Court might think fit, to give a verdict according to
the truth.
Chubb J. : The 7th section of the principal Jury 4 ci requires
notice of the jury lists to be affixed on the door of every church,
chapel, and place of religious worship in the jury district. This
implies that jurors attend places of religious worship and presum-
ably have a religious belief. The form of jurors' oath " So help
you God," given in The Oaths Act, s. 22, and of affirmations
(ss. 17, 18, 19), clearly apply only to persons having a rehgious
belief. The Oaths Act Amendment Acts of 1876 and 1884 can only
be applied to interpreters and witnesses. On these grounds
I think the juror is not competent. I am further confirmed in
my view by the fact that an Imperial Statute (51 and 52 Vic,
o. 46) was passed jn 1888, which has not yet been adopted in
Queensland, by which persons who have no religious behef may,
" in all places, and for all purposes," make affirmations, " omitting
any words of imprecation or calling to witness ; " so that in
England an atheist may now serve on a jury, but not in Queens-
land as the law stands at present. I decide, therefore, that the
juror being admittedly an atheist, is not competent to serve
on the jury, and I direct the sheriff to remove his name from the
panel.
CEIMINAL REPORTS, 1860-1907.
851
REGINA V. ROYS.
1 9 Q.L.J. 47 ; N.C. 14.— Note.— 55 Vic, No. 24, ss. 4, 6, and 10 are repealed, see
now ss. 212, 215, and 578 ot Criminal Code. See also R. v. Abbott, (9 Q.L.J.
92), post.]
Criminal law^Carnally knowing girl under twelve — Attempt — i898.
Indecent assault — 55 Vic, No. 24, ss. 4, 6, 10 — Corroboration. llthMay.
Hdd, that the fact that the child assaulted was found shortly after the committal Chubb J.
of the offence to be suffering from a disease which might be either of a venereal
or of an innocent character, was not a corroboration in some material particular
as required by the Statute.
Trial -of George Houghan Roys for carnally knowing a girl
under twelve.
It appeared from the evidence that the ofience was committed
on the 26th November, 1897, upon a child aged ten years. Stains
were first noticed on the child's underclothing about the 4th
December, followed in a day or two by a discharge. On the 11th
December, the child was examined by a legally qualified medical
practitioner. His evidence was that the child was suffering from
a purulent discharge presenting the same characteristics as those
of gonorrhoea, but he could not say that it was gonorrhoea ; that
children get purulent discharges from ill health, which it is im-
possible to distinguish from gonorrhoea. On the 15th December,
he examined the prisoner and found him to be suffering from
undoubted gonorrhoea ; that the disease develops in a male in
four to five days, and under eight days, unless in very exceptional
cases.
At the close of the case for the Crown, Perske, for the prisoner,
submitted that there was no corroborative evidence to go to the
jury.
Chubb J. : I am of opinion that there is no corroborative evi- Chubb J.
dence of the felony charged, or of the attempt, to go to the jury.
The only corroborative evidence relied upon by the Crown is the
discharge from which the child was suffering. It is consistent
with the evidence that the discharge may have been of a perfectly
natural and innocent character, and as the professional witness
declined to say positively what it was, I do not think it ought to
be left to a jury, who are not specialists, to determine the nature
of a disease which a skilful practitioner says he cannot diagnose.
Solicitor for the prisoner : H. Perske, Charters Towers.
352 QUEENSLAND JUSTICE OF THE PEACE.
REGINA V. LANG AND MURPHY.
[9 Q.L.J. 48 ; N.C. 15.— Note.— 29 Vic, No. 6, s. 10, is repealed, see now s. 391 ot
Criminal Code and s. 398 (III.)]
1898. Criminal law— Cattle stealing— 2^ Vic, No. 6, s. 10— Animus
nth May. furandi — Intention.
Gh:ibb J. l^ a_ slaughterman (servant to A., a, butcher), drove a cow belonging to B. into
A.'s yard, assisted by M., and directed C. (another servant of A.) to kill it. CV
killed, skinned, and cut up the animal, placing the skin and horns in his master's
hide house, and the body in his master's boiling-down pot, where it was cooked
and afterwards given to A's pigs for food. A. knew nothing of the transaction.
Held, that there was evidence of stealing against both L. and M. to go to the
jury.
Trial of William Abraham Lang and Martin Murphy for cattle
stealing.
Evidence of the facts stated in the head note having been,
adduced by the Crown :
Macnaughton and Milford, for the prisoners, submitted that there
was no evidence of steaUng to go to the jury, there being no
evidence of an " animus furandi," or that the act was done " lucri
causa." They cited : R. v. Cabbage (R. & R. 292), R. v. Morfitt
(R. & R. 307), R. V. Privett (1 Den. 193), R. v. Richards (1 C. & K.
532), R. V. Deering (11 Cox 298).
Chubb J. : On the authorities I shall submit the case to the
jury, but I will save the point if you desire it.
At the request of counsel for the prisoners, the question was
reserved.
Chubb J. Chtibb J. (in summing up to the jury) : " Theft," as defined by
Stephen J., in his Digest of the Criminal Law, article 295, is
" the act of deaUng from any motive whatever, unlawfully and
without claim of right, with anything capable of being stolen .
. with the intention of permanently converting that
thing to the use of aiiy person other than the general or special
owner thereof." Keeping this definition in mind, if the jury are
of opinion that the prisoners took the animal, and caused it to be
killed and dealt with, as proved, with the fraudulent intention of
permanently depriving the owner of it, without his consent,
either for some benefit to themselves, or for the benefit of the
prisoner Lang's master, they are guilty of stealing.
The prisoners were acquitted.
CRIMINAL EEPOETS, 1860-1907.
353
REGINA V. WARDELL.
[9 Q.L.J. 49 ; N.C. 12.— Note.— See also R. v. Johnstone (1907 S.R.Q. 155), post.]
Criminal law — Trial — Practice — Challenge of jurors — Order to
stand by.
Held (following B. v. Freeman, 6 Q.L.J. 281), that the time during the em-
panelling of a jury at which the Crown shall show cause of challenge is in the
discretion of the Court.
S. V. Shaw (B.C.B. 3rd June, 1885) not followed.
Tbial of Bernard WardeU for maliciously killing five horses.
When the panel of jurors had been gone through twice, seven
jurors only had been sworn, the prisoner's advocate having
peremptorily challenged nine jurors. The other jurors, fifteen
in number, had been ordered to stand by. The first of these
jurors was then again called, and the Crown asked that he be
ordered to stand by.
Selwyn- Smith, advocate for the prisoner : The Crown must now
show cause of challenge. This is the third time of calling the
panel.
Chubb J. : This point has been determined in R. v. Freeman
(6 Q.L.J. 281) by Griffith C.J., but I am aware of a decision to
the contrary by Harding J., viz. : R. v. Shaw (B.C.R. Zrd June,
1885) not reported. I must now decide between the two.
Macnaughton {amicus curiae) : It is the invariable practice of
Cooper J. to require the Crown to show cause of challenge on the
third calling over.
Chttbb J. : I have had occasion before now to consider this
point, and my opinion has always been the same as that expressed
by the learned Chief Justice in R. v. Freeman, and notwithstand-
ing R. V. Shaw. I have always foUowed Mansell v. The Queen
(D. & B. 375). The authorities are collated in Archbold 21st Ed.
170-2. The panel must be exhausted before the Crown can be
compelled to show cause of challenge — that is, it must appear
that a full jury cannot be obtained if the Crown is allowed to
stand by peremptorily, so that the " inquest would remain
untaken." This is in the discretion of the Court, according
to the usual practice of the Court. Further, the prisoner
has not exhausted all his challenges, and he is bound to
show all his causes of objection before the Crown can be called
upon to show cause of challenge. The juror must stand by.
1898.
19th May.
Chiihh J.
Chubb J.
354
QUEENSLAND JUSTICE OP THE PEACE.
Begina 0.
Wabdell.
The third calling over of the panel was then completed, the
Crown directing eleven jurors to stand by, and three jurors being
sworn. Nine jurors remaining, the panel was called over a fourth
time, and two jurors sworn, which completed the jury — none
being challenged or ordered to stand by.
At the request of Sdwyn- Smith, the questions were reserved :
1. Whether on the third calling over, the jurors were rightly
ordered to stand by.
2. Whether the fourth calling over was rightly allowed.
The prisoner was acquitted.
Solicitor for prisoner : G. Selwyn-Smith, Townsville.
1898,
1st November.
Griffith C.J.
Real J.
Paul A.J.
[Full Coubt.]
R. V. ABBOTT.
[9 Q.L.J. 92 ; N.C. 36.— Note.— 25 Vic, No. 24, s. 4, is repealed, see now s. 212 of
Criminal Code. Sec. 6 of Criminal Practice Act of 1865 Is repealed, see now
s. 584 of Criminal Code.]
Criminal law — Evidence — Carnally knowing a girl under the age of
twelve years — Corroboration of evidence of girl in some material
particular — 55 Vic, No. 24, s. 4.
A prisoner was charged, under s. 4 of The Criminal Lalv Amendment Act of
1891, with unlawfully carnally knowing a girl under the age of twelve years.
The evidence relied upon as corroborating that of the child, who deposed to the
commission of the offence, consisted of medical evidence that the girl had been
recently carnally known by some man, and other evidence that the prisoner
had, at the time of the alleged offence, been living near the house of the child's
parents, and had, by reason of the natxire of the locality, the opportunity to
commit the alleged offence ; that, prior to the date of the alleged offence, the
prisoner had stated he was suffering from a venereal disease ; that some five
weeks after the alleged offence, the girl was found to be suffering from gonorrhoea,
and that prisoner, on being examined a few days later, was found to be suffeiing
from an affection which might have been caused by gonorrhoea as well as by
some other disorders. The prisoner was found guilty and sentenced, Griffith C.J.
reserving for the Full Court the question whether the evidence of the girl, impli-
cating the prisoner, had been corroborated by other evidence in some material
particulars, as required by s. 4 of The Criminal Lalu Amendment Act of 1891.
Held, that there was corroboration in some material particulars, and that the
prisoner was rightly convicted.
Special case stated by Griffith C.J., for the consideration of
the Full Court under the Criminal Practice Act of 1865.
CRIMINAL EEPOETS, 1860-1907. ^55
The prisoner was charged before Griffith C.J. at the Roma
Circuit Court, on the 27th September, 1898, with an indecent
-assault on a girl under the age of twelve years. During the pro-
gress of the case, in exercise of the power conferred by s. 6 of The
Criminal Practice Act of 1865, the judge discharged the jury and
directed the defendant to be indicted for the felony apparently
disclosed by the evidence. The prisoner was then re-indicted for
the felony of unlawfully carnally knowing a girl under the age of
twelve years. The offence was alleged to have been committed
in a secluded spot at the edge of the water of the Warrego River,
at Cunnamulla. The evidence, in corroboration of the girl her-
self, was to the following effect : She had been recently carnally
known by some man, as the hymen had been recently ruptured.
For about a month before the date of the alleged offence, the
prisoner was living in a bough shed about 80 yards distant from
the house in which the girl lived with her parents, on the high
bank of the Warrego River, during which time he was frequently
in the company of the girl, and her sisters and brothers, and used
to fish with them in the Warrego River, below the bank on which
the girl's parents' house was situated. A few days before the
alleged offence, prisoner was seen examining his person, and said
in answer to a question, " I have got a dose ; I got it from a black
gin." On a day which the girl's mother fixed at three days after
the prisoner's departure from the locality — the offence being
-alleged to have been committed on the day before he went — the
girl complained to her mother of soreness in her person. A day
or two later, and again a fortnight later, the mother noticed signs
of a discharge on the chUd's drawers. The girl was examined by
a medical practitioner about five weeks after the alleged offence,
when she was found to be suffering from gonorrhoea, and the
prisoner, when arrested a few days later, was found to be suffering
from an affection which might have been caused by gonorrhoea, as
well as by some other disorders. The rupture of the girl's hymen
had occurred within three months. The jury found the prisoner
guilty of the felony, and also of the misdemeanour of indecent
assault on a girl under the age of twelve years. The learned judge
passed sentence of ten years' penal servitude upon the conviction
for the felony, but reserved for the consideration of the Supreme
Court the question whether there was evidence implicating the
prisoner, corroborating in any material particular the evidence of
the girl herself. The learned judge also passed sentence of three
years' penal servitude upon the conviction for misdemeanour, and
B. V. Abbott.
356 QUEENSLAND JUSTICE OP THE PEACE.
E. V. Aebott. respited execution upon the sentence for felony, and committed
the prisoner to prison.
Power, for the Crown, to support the conviction, cited B. v,
M'Ghie (6 Q.L.J. 151), E. v. Boys (9 Q.L.J. 47), and B. v. Gregg'
(18V.L.R. 218).
The prisoner in person offered no argument.
The judgment of the Court was delivered by
Keal J. Real J. : In this case the prisoner was convicted of a felony, and
was sentenced. The question is whether there was any evidence
corroborating, in a material particular, the evidence of the
little girl ? We have to state an answer to that question — to the
case stated by the learned Judge. That case puts the facts
shortly as they appear on the evidence. It does not give us-
the details of the evidence, but gives us, as it were, the essence
of them. There is this in. corroboration of the girl, that she
had recently been carnally known by some man. There is no
doubt about that. The hymen had been recently ruptured. For
about a month before the date of the alleged offence, the prisoner
was Uving in a bough shed some 80 yards from the place where
the girl Uved with her parents on the banks of the Warrego.
He was frequently in the company of the girl, her sisters, and
brothers, and used to fish with them in the Warrego River.
A few days before the alleged offence, the prisoner was seen
below the bank examining his person, and he said to a person,
" I have got a dose ; I got it from a black gin." What inference
is to be drawn from that ? That he had got, in connection with
a black gin, some sexual disease. That is the only inference
that can be drawn, and that was only a few days before the
commission of the offence. Some person had connection with
the child. The child swore it was the prisoner. The child was-
not shown to have known anything of these circumstances.
Three days after the prisoner's departure from the locaUty —
the offence having been alleged to have been committed the
day before he went away — the girl complained of soreness in,
her person, so that, immediately after the action which is alleged
against the prisoner, the girl developed the symptoms of soreness
in her parts. A day or two later, the mother noticed signs of
a discharge, and the child was found to be suffering from
gonorrhoea. The girl said it was the prisoner who had assaulted
her three days before. Within three days after the child had
been assaulted, a disease developed in the child, which the medical
CRIMINAL EEPORTS, 1860-1907.
practitioner swore was gonorrhoea. The prisoner, at the expira-
tion of a week or so later, was examined, and it was found that
he was suffering from something which might be gonorrhoea,
so that was consistent with his statement that he was suffering
from a sexual disease. Under these circumstances, the question
is whether there was any evidence impUcating the prisoner
corroborating, in any material particular, the evidence of the httle
girl ? Well, if looking at all the facts, if there was evidence that
it was a common disease in the neighbourhood, it would widen
the circle, and perhaps the Judges would have 'to reject it, but
I do not see why we should take it as a matter of law that persons
there are generally sufiering from gonorrhoea. Every circum-
stance points to the prisoner as the person who committed the
offence. Under these circumstances, it seems to me that, in
this particular case, there was evidence to go to the jury in corro-
boration of the child's statement. Speaking for my brother
Judges in that respect, I may say that they have also come
to the conclusion that there was evidence which might go to the
jury. The result, therefore, will be that the conviction and
the sentence for the felony will be confirmed, and the conviction
for the misdemeanour will be quashed.
357
V. Abbott.
Beal J.
R. V. HART.
[9 Q.L.J. 95 ; N.C. 48.— Note.— See now s. 430 of Criminal Code.]
Evidence — Opinion of expert as to honesty of banking transaction
— Question for the jury.
Upon the trial tJf defendant bank directors, charged with conspiring with intent
to defraud shareholders and depositors, evidence was given that interest was
credited to certain accounts which had, in fact, not earned any interest. Counsel
for the prosecution asked a witness, who was tendered as an expert in banking,
for his opinion as to the propriety of so crediting the accounts.
Held, that the evidence was inadmissible.
Trial of F. H. Hart and others at the Brisbane Criminal
Sittings on a charge of conspiring among themselves and with
other persons with intent to defraud the depositors in, and share-
holders of, the Queensland National Bank.
In this case the defendants, who were the directors of the
Queensland National Bank, were charged with conspiring with
intent to defraud the depositors and shareholders of the Bank.
1898
4th November.
Griffith C.J.
358
QUEENSLAND JUSTICE OP THE PEACE.
B. V. Hart. The prosecution adduced in support of the charge evidence that
interest had been credited to several accounts which had not in
fact earned interest. Edward Griffith, a witness tendered by
the prosecution as a banking expert, was asked by counsel for the
prosecution to give an opinion as to whether interest was justifi-
ably charged to those accounts.
Lilley, Feez, and Lukin, for various defendants, objected. This
is opinion evidence, and not admissible. There is no authority
for the admission of opinion evidence on a mere question of
propriety. Moreover, the question is really the issue between,
the parties, and is for the jury alone.
Mutledge : In the Glasgow Bank Case, evidence of this nature
was admitted and relied upon by the learned Judge in his charge
to the jury. Moreover, the jury are quite as competent to form
an opinion in this matter as the witness, and therefore the evidence
is admissible. (Phipson p. 359, Fenwick v. Bell, 1 C. & K. 312.)
Griffith C.J. Griffith C.J. : I must have regard to the issue that is before
the jury to try. The issue involves a charge of fraud, of dis-
honesty, of dishonesty of intention. If the charge against the
defendants were negUgence in a civil action, possibly difierent-
considerations might apply. Possibly, I say. I am not at all
sure they would, but I must have regard to the issues before the
jury in this case, and I must have regard to the substance of the
question, not to its form. The jury will be asked by the Crown
to come to the conclusion that these amounts were credited to
interest received, although they were not actually earned, and
that that was done dishonestly. Having regard to that, the
question in substance amounts to this. Was it honest to include
these amounts — to put these amounts to interest received ?
It is quite clear that a question of this kind cannot be asked
according to our law — asking a man whether the conduct of
another man is honest. It is a matter of which the jury only are
judges. I reject the evidence tendered.
Solicitors for defendants : Macpherson & Son and G. V.
Hellicar.
CEIMINAL EEPOKTS, 1860-1907.
859
In re CARUCHET.
[9 Q.L.J. 122 ; N.C. 67.— Note.— See Commonwealth Extradition Act
(No. 12 ot 1903).]
Habeas corptos — Return to writ — Prisoner under remand on charge 'i-^9^-
of felony — Offence not committed within territorial jurisdiction *'' ^ ruary.
of Queensland. Griffith G.J,
The return to a writ of hdbms corpus stated that the appellant was detained
in Her Majesty's Gaol at Brisbane under remand on a charge of larceny, but
did not show that the offence was charged to have been committed within the
territorial jurisdiction of the colony of Queensland.
Hdd, that the return was insufficient, and that the prisoner must be discharged.
Motion on behalf of Arthur Alexandre Caruchet, on the return
of a writ of habeas corpus, that he be discharged from custody.
The prisoner was arrested in Queensland by warrant on a charge
of larceny of a boat in New Caledonia, and was brought before
the Police Magistrate at Brisbane on a charge of larceny, who,
on 21st February, remanded the prisoner to the custody of the
superintendent of Her Majesty's Gaol at Brisbane. On 24th
February a writ of hqbeas corpus was, issued, directed to the
superintendent of the gaol, to which a return was filed by the
superintendent showing that the prisoner was detained under
warrant of remand on a charge of larceny.
Fewings moved that the prisoner be discharged. The return
does not show that the offence is alleged to have been committed
within the territorial jurisdiction of Queensland, and is bad
on the face of it.
Connolly, for the Crown, submitted that the return was true,
and that the Court could not go behind it. In answer to the
Court, he said that he did not suggest that an amended warrant
could be substituted alleging that the offence had been com-
mitted in Queensland.
Geiffith C.J. : The prisoner is brought up under a writ of
habeas corpus, and it appears by the return that he is in custody
under a warrant of remand upon a charge of larceny. At first
sight that seems good, but it is suggested that the alleged larceny
was not committed within the territorial jurisdiction of Queens-
land. The writ was granted on affidavits by which it appeared
that the prisoner was arrested upon a charge of larceny com-
mitted in New Caledonia. There is no doubt that the tribunals
Griffith C.J.
360
QUEENSLAND JUSTICE OP THE PEACE.
In re Cabcohet. of Queensland have no jurisdiction to deal with offences com-
GriffitTc.J. mitted beyond the territorial Hmits of Queensland. If that
were ever liable to doubt, it was settled by McLeod v. The Attorney-
General of New South Wales (1891, A.C. 455). The tribunals
of this colony have no jurisdiction to punish offences committed
abroad, unless under the authority of some Imperial statute,
which is a matter that does not come into question here. Now
the Justices Act prescribes a form of warrant of committal on
remand (Form 16 in the Third Schedule to the Act), which recites
that the accused person was charged before justices for that,
&c., " as in the warrant to apprehend." The warrant to
apprehend is Form 8, and it recites that complaint has been
made for that the accused on such a date and at such a place
committed such an offence. The place where the offence was
committed is a material element in determining whether the
Court has jurisdiction to deal with the matter or not. The
return in the present case must, I think, be taken to be true in
fact. I have been invited to go behind it and ascertain the
actual facts, but I do not think, with the light I have now, that
in a criminal case the Court has any jurisdiction to do so. The
Statute 56 Geo. III., c. 100, which gives that power, only deals
with cases that are described as " other than for some crime or
supposed criminal matter." The objection, however, that the
return is bad on the face of it in not showing that the alleged
offence was committed within the jurisdiction of Queensland is a
substantial one, and the only question is whether I am bound
to read the allegation in the return that he was charged with
larceny as meaning that he was charged with larceny committed
in Queensland. Having regard to the forms given by the statute,
and the general rule that nothing is intended against Uberty
in the proceedings of inferior tribunals, I come to the conclusion
that I am not bound to read the statement that the prisoner was
remanded on a charge of larceny as meaning larceny committed
in Queensland. If this were merely a technical objection, and
the real charge against the prisoner were one of larceny committed
in Queensland, I should feel disposed to adjourn the matter for
the purpose of allowing an amended warrant of committal to be
substituted ; but Mr. Connolly, in supporting the case for the
Crown, has not suggested that any other warrant could be sub-
stituted. I propose, therefore, to deal with the matter on the
basis that the prisoner is on remand charged with an offence
committed in New Caledonia. There are provisions for the
CRIMINAL EEPOETS, 1860-1907.
361
extradition of offenders who have committed offences in foreign
parts. They are contained in The Extradition Act, and that is an
Act which can only be put into operation at the request of the
accredited representative of a foreign power. No question of
that kind arises in this case. I therefore am bound to consider
the prisoner as in custody for an offence which does not appear
to have been committed within the territorial jurisdiction of
Queensland. That being so, the courts of this colony have no
jurisdiction to deal with it, and I am bound to order the prisoner
to be discharged.
Solicitor for A. A. Caruchet : W. C. Harding.
Solicitor for the Crown : J. H. Gill.
In re Cakuchet.
Griffith C.J.
[Full Coxjbt.]
THE QUEEN v. GLEN.
[9 Q.L.J. 140 ; N.C. 80.— Note.— See ss. 28 and 391 of Criminal Code.]
Criminal law — Larceny — Animus fur audi — Finding of jury that
accused unaware of what he was doing.
On the trial of a prisoner for larceny, the jury found a verdict of guilty, but
added a special finding that the prisoner was under the influence of drink at the
time he committed the oflEence, and did not know what he was doing.
Bdd, that that amounted to a finding of an absence of animus furandi, and that
as the intent to steal was an essential ingredient of the crime of larceny, the
■conviction must be quashed.
Cbown Case Reserved by a District Court Judge.
Glen was charged at the Criminal Sittings of the District Court
at Brisbane with larceny. The jury found a verdict of guilty,
but added a rider that the prisoner was under the influence of
drink when he committed the offence and did not know what
he was doing. The learned Judge (Mansfield D.C.J.) stated a
case for the decision of the FuU Court as to the effect of thesr
findings, and ordered the prisoner to appear for sentence aftee
the decision of the case by the Full Court.
Woolcock, for the Crown, cited R. v. Farnborough (1895 2 Q.B.
484) ; RusseU on Crimes, 6th Ed., Vol. 1, p. 144 ; R. v. Doherty
(16 Cox 306).
Prisoner, in person, offered no argument.
1899.
38th March.
Griffith C J.
Power J.
Paul A.J.
362
QUEENSLAND JUSTICE OF THE PEACE.
The Queen c.
Glen.
Griffith C,J.
The judgment of the Court was delivered by
Griffith C.J. : In this case the prisoner was convicted of
larceny, but the jury added a special finding that the prisoner
was under the influence of drink at the time he committed the
offence, and did not know what he was doing. I think that this
must be taken as a special verdict. The crime of larceny involves
a fraudulent intention, or what is called an animus furandi.
It was pointed out in the case of The Queen v. Farnhorough that
the animus furandi is an essential ingredient in the crime of
larceny — that is, the intention to steal is an essential ingredient.
Here the jury found that the prisoner did not know what he was
doing. If that is so, he could not have had any such intention.
It is clear, therefore, that the conviction was wrong, and it must
be quashed and the prisoner be discharged.
Solicitor for Crown : J. Howard Gill, Crown Solicitor.
1899.
30th August.
Griffith C.J.
Cooper J,
Real J.
[Full Coukt.]
R. V. HAMILTON.
[9 Q.L.J. 251 ; N.C. 115.— Note.— See now s. 597 of Criminal Code.]
Criminal law — Practice — Indictment — Prisoner indicted by and
pleading to false name — Motion in arrest of judgment —
Evidence.
A prisoner was indicted by the name of Hamilton, and pleaded to that name.
It appeared in evidence that he had for five days pa.«sed under that name at
an hotel in Brisbane, but that his real name wa.s M'Donald. The jury convicted
him, but before sentence counsel moved in arrest of judgment on the ground
that the prisoner had been indicted under a wrong name.
Hdi, on a Ciown Case Reserved, that the objection was taken too late, and
judgment should be pronounced.
Semble, that even if taken in time, the objection would not have been valid-
Special Case stated by Noel D.C.J, on the trial of John
Hamilton for forgery and uttering.
All the necessary facts appear in the case stated by the learned
Judge, which was as follows : —
" The prisoner was tried before me at the last sittings of the
District Court, Brisbane, for forgery and uttering. He was
defended by counsel. He was found guilty on both counts.
After verdict, but before sentence, counsel moved in arrest
CRIMINAL REPORTS, 1860-1907. 368
of judgment on the ground that the prisoner was indicted by ^' "• Hamilton.
the name of Hamilton, whereas the evidence disclosed that his
name was M' Donald, and that it was too late to amend. The
prisoner, when arraigned, answered and pleaded to the name of
John Hamilton. There was evidence that for four or five days
he was known as Hamilton at an hotel in Brisbane at which
he stopped, but there was no evidence that he was generally
known as Hamilton. The arresting constable testified that when
he arrested the prisoner he gave the name of M'Donald, and denied
that his name was Hamilton. The prisoner on oath said his
name was John Hamilton M'Donald. I intimated to counsel
that I was of opinion that there was nothing in the point, but
that if he pressed it I was of opinion that I had no option but
to state a case under s. 48 of The Criminal Practice Act. An
adjournment was granted to enable counsel to consider the
matter, and upon resumption counsel said he must press the point.
Having referred to the cases of R. v. Pieremont (2 Q.L.J. 93), and
R. V. Duncan (4 Q.L.J. 219), decided by ^He Supreme Court
Judges, I was of opinion I was bound to sti>.t^e a case for the
Supreme Court Judges. I therefore postponed judgment, and
committed the prisoner to prison pending the decision of the
Supreme Court Judges. The questions for the opinion of the
Supreme Court Judges are : —
"I. Ought I to have upheld counsel and discharged the
prisoner ?
" 2. Should I have been right to have refused to state a case
and proceeded to judgment ?
" I have been requested and agreed to make an addendum setting
forth a point which I was not formally asked to make a note of at
the trial. It was as foUows : — That I wrongfully allowed the
Crown Prosecutor to cross-examine the prisoner from a book
containing a photograph and previous convictions of a man
named A. B. H. M'Donald, whereby the jury might have been
influenced in convicting the prisoner under the name of Hamilton,
there being no evidence that the prisoner was in any way connected
with the same record, nor evidence that any such named person,
nor any prior conviction against any such named person, was
entered thereon. The facts are that the prisoner, who was shown
the book, denied in an evasive manner that it was his photograph,
but admitted that he had served sentences in New South Wales
of six months with hard labour and four years' penal servitude
respectively. These were the sentences recorded in the book in
364
QUEENSLAND JUSTICE OF THE PEACE.
B,. V. Hamilton.
Griffith C.J.
Cooper J.
Beal J.
question, and the prisoner had answered and pleaded to the name
of John Hamilton."
A. S. Lilley, for the prisoner : The conviction should be set
aside. The prisoner was indicted under a wrong name, and the
error was only discovered by the Crown when it was too late
to amend. The introduction of the book of photographs was not
justified by law, and the manner in which the book was produced
and the practical revelation of its contents were calculated
to prejudicially affect the prisoner's case with the jury, and on
that ground the conviction should also be avoided.
Griffith C.J. : The first objection taken in this case is that
the prisoner was indicted by a wrong name. He was indicted
by the name of John Hamilton. He pleaded to the charge by
that name, and he was convicted by that name. After the
verdict, objection was taken that his name was not Hamilton,
but M'Donald. It appeared in the course of the evidence that
he was sometimes called Hamilton, and there was some evidence
that his proper name was M'Donald. Formerly, when a prisoner
took exception that he was wrongly described in the indictment,
he had to do so by plea in abatement. That practice was aboHshed
seventy years ago, by a statute which is now re-enacted in s. 19
of The Criminal Practice Act of 1865. Since then, if the objection
is taken, and it is proved to be well founded, the Judge will direct
the indictment to be amended. It was never suggested, as far
as I know, in the days of pleas in abatement, that an objection
by way of plea in abatement could be taken after verdict. It is
clear that the objection was taken too late, if there were anything
in it.
The other point I confess I have great difiiculty in apprehending.
The prisoner was cross-examined by counsel for the Crown,
and in the course of cross-examination was asked if a photograph
in a book produced was his photograph. He said that it was not.
The objection seems to be that the book ought not to have been in
Court, or that no reference ought to have been made to the photo-
graph. I do not know what the objection is. The most that
can be said is that the form of the question was objectionable,
but that is a matter for an appeal to the discretion of the Judge.
I cannot see anything in the point at all. The conviction must
be affirmed.
Cooper and Real JJ. concurred.
Solicitor for the prisoner : E. J. Peterson.
CRIMINAL REPOKTS, 1860-1907.
365
[Full Couet.]
R. V. DUNSHOT.
[9 Q.LJ. 298 ; N.C. 131.— Note.— See. 42 ol 29 Vic, No. 5, Is repealed, see now
special provision in s. 468 of Criminal Code.]
Criminal law — Killing or maiming cattle — Horses — Injuries to
Property Act of 1865 (29 Vic, No. 5), s. 42.
The word " cattle," in s. 42 of The Injuries to Froyerly Act of 1865, includes
horses.
Crown Case Reserved by Chubb J.
The prisoner Dunshot was charged, under s. 42 of The Injuries
to Property Act of 1865, with maiming cattle, the subject of the
injury complained of being a horse. The prisoner was found
guilty and sentenced, but the learned Judge, at the request of
counsel for the prisoner, suspended the execution of the sentence
pending the decision of the Full Court on a case stated by him as
to whether the word cattle in s. 42 included horses.
Butledge A.G., Q.G., Wassell with him, for the Crown, to
support the conviction.
No appearance for the prisoner.
Griffith C.J. : In the year 1707 this point was first raised for
the decision of the Judges on the construction of 9 Geo. I., c. 22,
which provided that any person who should unlawfully and
maliciously kill, maim, or wound any cattle, should suffer certain
punishment. On that section the Judges in England decided
that the word " cattle " included horses. The statute is long
since repealed, but it has been replaced from time to time by
others in which the same language is used. It is now repre-
sented by s. 42 of the Injuries to Property .4cf, jsvhich uses precisely
the same words. The Legislature had before them a form of words
upon which a judicial meaning had been put by the Bench in
1707. They used the same language, and the necessary implica-
tion is that they meant the same thing, and that the word
" cattle " includes horses. The case is really not arguable.
Cooper J. : I concur.
Real J. : I concur.
Solicitor for the Crown : C. Powers.
1899.
8th December:
Griffith G.J.
Cooper J.
Real J.
Griffith C.J.
Cooper J,
Beal J.
866 QUEENSLAND JUSTICE OF THE PEACE.
[Full Coukt.]
R. V. WHITEHOUSE.
[9 Q.L.J. 325 ; N.C. 134.]
1900. Bigamy — Valid marriage — Oath before marriage — Kissing the hook
13th February. Persons married by incorrect name.
Griffith C.J. On the trial of a prisoner for bigamy, the learned Judge directed the jury that it
Reed J ' ^^ immaterial whether the prisoner, in taking the necessary oath before the
first marriage, which oath they found had in fact been taken, did or did not kiss
the Bible.
Held, on a Crown Case Reserved, that the jury were properly directed.
It is not necessary, to constitute a valid marriage, that the right name of the
parties should appear. It is sufficient if they are married under the names by
which they are generally known.
Crown Case Resbeved by Noel D.C.J.
The defendant, E. H. W. Whitehouse, wa.s tried before Noel
D.C.J, on a charge of bigamy. From the evidence it appeared
that on the first marriage of the accused the parties were married
according to the rites of the Methodist Church, but no evidence
was given as to the exact formula observed. The officiating
minister, however, deposed that all necessary formulae were fol-
lowed. His Honour directed the jury that it was immaterial
whether the defendant, in taking the necessary oath before
marriage, kissed the Bible, so long as the necessary legal formulse
were complied with. The jury found that as a fact the defendant
did kiss the Bible. It also appeared that the second marriage was
made between the prisoner and a woman whose name was given
as M.A.P., but whose real name was M.A., the former name being
that by which she was generally known. The learned judge, at
the request of the prisoner, reserved for the consideration of the
Full Court the following questions : —
1. Was I right in directing the jury that the kissing of a Bible
was immaterial ?
2. Was I right in proceeding to sentence, although the evi-
dence disclosed that the original name of the subject
of the second marriage was M.A. and not M.A.P. ?
Prisoner (in person) submitted that there was evidence that the
Bible was not kissed at the first marriage, which was therefore
invalid ; and that the second marriage was invahd owing to the
wrong name being given by one of the paijties to the marriage.
Watson, for the Crown : The defect alleged by the defendant in
the making of the oath is contemplated and covered by s. 21 of
CRIMINAL REPORTS, 1860-1907. 367
The Marriage Act. " Kissing the book " is not essential to the B. i,. Whiiehouse
taking of an oath. The only requirement is that the oath be
taken reverentially. The declaration even if not made on oath
is sufficient.
The Court did not wish to hear him on the second question.
Prisoner, in reply, contra.
Geiffith C.J. : The first point raised in this case, as stated by Griffith C.J.
the learned judge, is whether he was right in directing the jury
that kissing the Bible was immaterial in the taking of the oath
required by law to be made by the prisoner before marriage.
Other points were sought to be raised by the prisoner in the
course of the argument, and although we are limited to the case
as stated by the learned judge, we have, at the prisoner's request,
referred to His Honour's notes, and we find that no other point
really could be raised on the facts as they appaered before the
Court below. The question then is : Is it essential to the validity
•of an oath that the person taking the oath should kiss the Bible ?
If there was ever any doubt on the subject it has been settled by
statute. Section 33 of The Oaths Act of 1867 provides that in all
cases in which an oath may be lawfully administered to any per-
son on any occasion whatever, such person is bound by the oath
administered, provided the same was administered in such form
and with such ceremonies as such person may declare to be bind-
ing. When an oath is administered, and the person to whom it
is administered accepts the mode of administration which is
tendered to him and takes the oath in that form, he cannot, in
my opinion, afterwards be allowed to say that he had it in his
mind at the time that it was not binding upon his conscience.
When, therefore, an oath is tendered to a person, and he takes it
without objection, it will be held binding upon him for all the
consequences that will depend on the validity of the oath. Here
it appears that an oath was administered in fact. Of course, this
is essential. The Act only applies in cases where an oath may
be lawfully administered and has actually been administered.
It appears on the evidence that an oath was administered to the
prisoner in some form, and that he took it. The jury have found
expressly that he kissed the Bible ; for the reasons I have just
stated, whether he did or not, appears to be immaterial. The judge
was, therefore, right in directing the jury that it was immaterial.
The other point is that the name of the woman with whom the
prisoner went through a bigamous marriage was not correctly
described in the information. The rule, as laid down in Taylor
868
QUEENSLAND JUSTICE OF THE PEACE.
B. i;. Whitehotjbe on Evidence, as to the name of the injured person is that "it is
Griffi^C.J. not necessary to describe the party by what in strictness is his
right name, but that it is sufficient to give any name which he
has assumed or by which he is generally known," and the learned
author adds that the omission of the second Christian name has
been frequently held to be immaterial. There is ample evidence
in this case that the unfortunate victim of the prisoner was
generally known by the name by which he was married to her.
CooPBE J. : I am of the same opinion.
Cooper J.
Beal J.
Real J. : In this case the prisoner was convicted of bigamy.
The learned judge has stated a case at the request of the prisoner,
in which he says that he directed the jury that it was immaterial
whether the Bible was kissed or not, so long as the necessary legal
formulae had been compUed with, and that there was no conten-
tion that the ordinary legal formulae had not been compUed with.
The prisoner here raises the question — and he asks practically
that the case may be sent back to raise the question — that no
oath at all was taken. A declaration is produced, signed by the
prisoner, which purports to have been made upon oath. The
evidence of the prisoner, and apparently of his wife, was that they
took no oath. The evidence of the clergyman is that the oath
was taken, and that the declaration was signed. However, that
being the point raised, the clergyman said the oath was taken in
the ordinary form by kissing the Bible. The point raised is
whether the learned judge was right in telhng the jury that it
did not matter whether they kissed the Bible or not, so long as
the necessary legal formulae had been complied with. That is
a rather ambiguous way of putting the matter. It seems that
the point at issue, so to speak, between the Crown and the
prisoner was whether in point of fact he put his lips to the book.
Now, s. 33 of The Oaths Act specially provides, as pointed out by
the Chief Justice, that if any form is used, and the person declares
it to be binding on him, that form is sufficient. It appears to me
that if any form is tendered to a person, and the person adopts
that form, he impliedly declares it to be binding upon him. He
declares to the person administering the oath that it is sufficient,
and in that event kissing the book is wholly unnecessary. If,
therefore, the book was tendered to a man, and he kissed his thumb,
he accepts that form ; and the mere fact that he did not touch the
book does not matter. He would be bound by the oath. Apart
from that fact, there are a great number of cases which decide,
CRIMINAL REPORTS, 1860-1907. ^69
and no doubt properly, that a man cannot evade his responsi- B- v- Whitehoube
bility by means of that kind, though he may salve his own con- EealJ.
science. Apart from that, s. 33 specifically declares that when
he adopts a form it is binding. I think that if any form is used,
and the person accepts the form when it is tendered to him by
w&y of an oath, for the purpose of giving solemnity to his declara-
tion, the mere acceptance of it involves a declaration that it is
binding upon his conscience. There must be some form of oath
tendered. The mere signing of the document would not consti-
tute, an oath. That documents purports to be given on oath,
and the oath is something outside the document. If the prisoner
were prosecuted for perjury, it would be of course at once essential
to decide whether or not he had taken an oath ; and I think in
that case the mere fact that he held up his hand, as the old
Covenanters did, or said " I swear," or anything of that kind,
would bring him within the provisions of s. 33, and he would have
taken the oath. I therefore think in this case the oath was taken.
The evidence of the clergyman is that it was taken by kissing the
book. That evidence might be contradicted, but the jury were
at liberty to believe it, and the judge was right in directing the
jury that the mere omission to kiss the book would not prevent
the oath being taken, or the omission of any form (so long as
some form was taken which the person accepted, knowing that
it was administered to him as an oath) render it not binding.
Whether he held up his hand, as the old Covenanters did, or
adopted some other form, it does not matter. The evidence being
sufficient, the question as to whether or not a marriage would be
binding if no oath were administered before the ceremony was
gone through, does not arise in this case, and it is therefore not
necessary to give a decision upon it. It is important, however,
to call attention to the fact that the wording of our section is by
this case shown to be precisely similar to that which was in
existence in New South Wales at the time of Tyson v. Logan, and
which rendered it incumbent on the New South Wales Legislature
to pass an Act validating all marriages. Whether or not it would
be wise for that to be done here is for the Legislature to decide.
It is not a matter for decision in this case, and consequently I
prefer to offer no opinion upon it, as it would have no binding
effect. Therefore I agree with the decision of my brother judges.
I do not wish to add anything on the other points.
Conviction affirmed.
Solicitor for the Crown : C. Powers.
370
1898.
7th November.
Griffith G.J.
QUEENSLAND JUSTICE OP THE PEACE.
R. V. HART.
[9 Q.L.J. N.C. 46.— Note.— But see now express provision In s. 611 of Criminal
Code.]
Practice — Juror — Challenge by Crown — Time for challenge.
DuBiNG the empanelling of the jury on a criminal trial, a juror
having come forward on his name being called, and having been
offered the book by the Court officer, had grasped the book, but
the officer had not released the book or begun to recite the oath,
when the juror was ordered to stand by : Held, that by the offer-
ing of the book by the Court officer, and its acceptance by the
juror, the administering of the oath had been commenced, and
that, therefore, the challenge was not in time.
1899.
28th April.
Real J.
K. V. MURRAY, Ex parte OLIVER.
[9 Q.L.J. N.C. 82. — Note.— See Commonwealth Extradition Act (No. 12 of 1903).]
Habeas corpus — Extradition Act, 1870 (33 and 34 Vic, c. 60), s.
10 — Wrongful admission of evidence before magistrate.
Where on an application to a magistrate under s. 10 of The
Extradition Act, 1870, to commit a prisoner, evidence was wrongly
admitted against the prisoner : Held, on the return of a writ of
habeas corpus, that notwithstanding that there was other evidence
rightly admitted upon which a committal might have been made,
the committal must be set aside and the prisoner discharged.
1900.
18th July.
Griffith C.J
Cooper J.
Real J.
[Full Court.]
R. V. HILL.
[10 Q.L.J. 50 ; N.C. 13.— Note.— See definition of " clerk or servant " in s. 1 of
Criminal Code, and see ss. 391,'^398 (VI.), and 443 of Code.]
Larceny — Misappropriation of funds of unregistered association —
Larceny by one of several joint owners.
The servant of an unregistered association can be convicted of larceny of the
funds of the association.
B. V. Stainer (L.R. 1 C.C. 230), E. v. Tankard (1894, 1 Q.B. 548) followed.
The fact that he is a member of the association is immaterial.
CRIMINAL REPOETS, 1860-1907. 371
Crown Case Reserved by Mr. Deputy-Judge Macnaughton ^' '"_^ '^'"
on the trial of Wililam Hill for embezzlement.
The prisoner was charged at the District Court at Charters
Towers with the embezzlement of the sum of £100, the property
of William Walsh and others. It appeared upon the evidence
that Walsh was the treasurer of the Charters Towers Miners'
Accident Association, an unregistered body whose object was to
provide pecuniary assistance to miners and their families in the
event of accident or death. The prisoner had acted — although
never formally elected by ballot, as required by the rules of the
association — as secretary to the society for eight years at a fort-
nightly salary, and was interested as a joint owner with others
in the funds of the association. The subject matter of the charge
was a cheque for £100, which had been signed by the president of
the association, by Walsh as treasurer, and by the defendant as
secretary, and had then been misappropriated by him under
circumstances which, in the opinion of the learned judge, amounted
to larceny as a servant, and not embezzlement. The jury found
the prisoner guilty of larceny as a servant, and sentence was passed ;
but the learned judge, at the request of the soUcitor for the
prisoner, stated a case for the decision of the Full Court, raising
the following questions : — (1) Can an unregistered association
prosecute a clerk for misappropriation of its funds ? (2) Was
there any evidence that the prisoner was a clerk to the Charters
Towers Miners' Accident Association ?
Dickson, for the Crown, cited R. v. Stainer (L.R. 1 C.C. 230),
E. V. Winfer (Diprose Friendly Societies' Cases p. 527), R. v. Taffs
<4 Cox C.C. 169), R. V. Diprose (11 Cox 185), R. v. Houston (6
Q.L.J. 145).
Griffith, C.J. referred to R. v. Tankard (1894, 1 Q.B. 548).
The prisoner (in person) offered no argument.
Griffith C.J. : The first point intended to be raised appears Griffith C.J.
to be whether a servant of an unregistered association or partner-
ship can be guilty of stealing its funds. The point is disposed of
by the cases cited — Regina v. Stainer and The Queen v. Tankard —
in which it was held that the servant of such an association can
be prosecuted even although the association is not registered.
The other point intended to be raised seems to be whether the
prisoner could be said to be a servant of " Walsh and others," he
himself being one of the others. It appears that the association
consisted of a number of persons, and was managed by a com-
872
QUEENSLAND JUSTICE OF THE PEACE.
R. c. Hill.
Griffith C.J.
mittee. The prisoner, who was the secretary, received a salary
of £3 10s. per fortnight, and was elected annually for several
years in succession. Therefore he was, in fact, a servant of the
association, if he could be in law. The Larceny Act of 1872, which
followed the English Act, was passed for the purpose of doing
away with objections that used to be taken when persons who
stole property were joint owners of it, on the grounds that a man
could not steal from himself and could not be a servant to himself.
The Act provides that persons who steal or embezzle property of
which they are joint beneficial owners shall be liable to be dealt
with as if they were not beneficial members. It is therefore
immaterial, both in the case of larceny and of embezzlement,
that the offender is a joint owner. In the case of embezzlement
he is, ex vi termini, one of the joint employers. The Act, how-
ever, expressly provides that he may be convicted of embezzle-
ment, so that that fact is in that case immaterial. It is, in our
opinion, equally immaterial in the case of larceny. Whether in
such a case he should be convicted of larceny as a servant or simple
larceny only, it is not necessary to decide, as the prisoner was
properly convicted of larceny, and has received a sentence that
might be passed upon a conviction for simple larceny.
The conviction will be affirmed.
Crown Solicitor : C. Powers.
J900.
4th December.
Griffith C.J.
Cooper J.
Real J.
[Full Court.]
R. V. KURUWARU.
[10 Q.L.J. 139 ; N.C. 36.— Note.— See R. v. Body Hogan (3 Q.L.J. 143), ant&
p. 207 ; R. V. Freeman 6 Q.L.J. 281) ante p. 300 ; R. v. Corbett (1903 S.B.Q.
246), post ; R. v. Warton (1905 S.R.Q. 167) post.]
Evidence — Dying declaration — Person of Mahommedan religion.
The doctrine of law which allows a declaration made by a person in a fixed,,
settled, hopeless expectation of immediate death to be admitted in evidence,
applies to a person of the Mahommedan religion.
On the trial of a person for the murder of B., who died from the effects of a
gunshot wound, the doctor who attended B. immediately prior to his death,,
deposed that prior to the making by B. of a declaration which was tendered in
evidence, he told B. that he was likely to die and was in a very weak state. The
declaration began as follows : " I, B., believing I am about to die, state." The
declaration was admitted in evidence.
Hdd, on a Crown Case Reserved, that the declaration was rightly admitted.
CRIMINAL REPORTS, 1860-1907. 373
Crown Case Reserved by Macnaughton, Special Commis- ^' "• Kukdwaru.
sioner, on the trial of Peter Kuruwaru and Sumba Amadoris on
a charge of murder.
The accused were charged before the Circuit Court at Cooktown
on a charge of having murdered one Bacca, a Mahommedan
native of Madras. The evidence showed that the deceased died
from the effects of a gunshot wound, and the Crown Prosecutor
tendered a dying deposition made by him, which had been taken
down by the doctor who attended him at his death, and who was
also a Justice of the Peace. His evidence as to the making of the
declaration was as follows : —
" He (Bacca) made a statement while in hospital. He was
very weak. He understood he was in a bad state. Bacca was a
Mahommedan. I told Bacca he was likely to die, and was in a
very weak condition before he signed the written statement. I
wrote it down and read it to him. He seemed to understand it.
That is his mark."
The statement was in these words : —
" Torres Straits Hospital,
" Thursday Island.
" I, Bacca, believing I am about to die, state : I heard a row
in the road. I was getting ki ki for Soupaya and another man.
This man (pointing to Amadoris) and Peter, a Cingalese, knocked
down Soupaya and his wife. I come help. Some one shoot me.
I don't know who fired revolver. j,ig
" Bacca x
" Taken at -2 a.m., July 18, 1900. ""-^^
" (Sgd.) Herbert Chesson, J.P."
No objection was made by the solicitor for the prisoners to the
admissibility of the evid,ence, and the statement in the declaration
that Bacca did not know which of them fired the shot was relied
upon by the solicitor in his address to the jury. After the retire-
ment of the jury the solicitor for the defence asked that the ques-
tion of the admissibility of the dying declaration might be reserved
for the consideration of the Full Court, but did not ask that it
should be withdrawn from the consideration of the jury. The
jury convicted the accused of manslaughter, and a sentence of
seven years' penal servitude was passed on each, but the execu-
tion of the sentence was respited until after the consideration of
the Full Court upon the point raised, and upon which the judge
stated a special case which now came on for hearing before the
Full Court.
374 QUEENSLAND JUSTICE OF THE PEACE.
K. '.'. KcBowAEtj. Henchman, for the prisoners : The dying declaration of the
deceased was improperly admitted. There were two grounds of
objection to the admission of this evidence : — (1), That there was
no evidence upon which the learned judge could have come to
the conclusion that the deceased, at the time of making the
declaration, was labouring under " a settled, hopeless, expecta-
tion of pending death " ; (2), there was no evidence before the
learned judge to show that the deceased was a person with such
a sense of religious responsibility as would impel him to speak the
truth at the moment of death, and so render a declaration made
by him in articulo mortis admissible in evidence.
On the first point he cited R. v. Jenkins (L.R. 1 C.C.R. 187),
R. V. Dalmas (1 Cox C.C. 95), R. v. Nicolas (6 Cox C.C. 120),
R. V. Megson (9 C. & P. 418), R. v. Mooney (5 Cox C.C. 318), R. v.
Osman (15 Cox C.C. 1), R. v. Gloster (16 Cox C.C. 471), R. v.
Mitchell (17 Cox C.C. 503), and R. v. Freeman (6 Q.L.J. 281).
On the second point : The rule as to the admission of dying
declarations was a strong exception to the criminal law ; that the
rule was introduced at a time when the common law was still
confined in its operation to persons resident in Great Britain, who
were presumedly Christians ; the Courts took notice of the
Christian religion and its doctrines, but with regard to Mahom-
medanism, the mere proof that a man professed that reUgion
would not entitle the judge to draw the inference, without evi-
dence of the fact, that that religion inculcated in its adherents
the sinfulness of falsehood and the likelihood of punishment
hereafter for false declarations made in life. On this point he
cited R. V. Pike (3 C. & P. 598), R. v. Perkins (9 C. & P. 395), and
Best on Evidence (7th Ed., p. 454.)
Garrick, to support the conviction : The question was one of
fact for the judge at the trial, and that he had ample evidence
before him to enable him to come to the conclusion at which he
has arrived. He cited Archbold's Criminal Practice and Evidence,
p. 294 ; Phipson on Evidence, p. 300 ; and R. v. Reaney (Dears.
& B. 151).
Griffith C.J. Gbiffith C.J. : The only question reserved in this case is
whether the dying declaration made by the man who was killed
was admissible in evidence. The point taken was that there was
not sufficient evidence to prove that the deceased, when he made
the declaration, made it believing that he was at the point of
death. Whether there was such evidence or not was a question
of fact to be determined by the learned judge at the trial, subject,
CRIMINAL REPORTS, 1860-1907. 375
of course, to revision by this Court. Was there evidence upon ^' ^' ^p^^'^^"^-
which the learned judge could properly find that the man believed Griffith C.J.
he was at the point of death ? The evidence was this : The man
was shot in the stomach at such close quarters that the flesh was
singed, and he died a very short time afterwards. Before he died
he made a declaration, which read, " I, believing I
am about to die," etc. The Court are of opinion that there was
sufi&cient evidence to enable the learned judge to come to the
conclusion that the man believed he was about to die.
Another point which is not reserved, but which it was sought
to raise, is, that the declaration was inadmissible on the ground
that the deceased was a Mahommedan. I know of no rule of law
which would exclude the dying declaration of a Mahommedan.
Mahommedanism, as we know, is one of the great religions of the
world. Its adherents number some hundreds of millions of people,
of whom more than 100,000,000 are British subjects. We see
them giving evidence in our Courts, and taking the oath on the
Koran. It would be a singular thing, indeed, for a British Court
to decide that the djdng declaration of a Mahommedan is not
admissible on the ground that he had no religious beUef. An
unusual circumstance in connection with the case, is that the
prisoners' counsel was anxious for the admission of the declaration,
and reUed on it as the main point in the prisoners' defence.
Afterwards, however, when the case had gone to the jury, he
asked the learned judge to reserve the first point. If it had been
necessary to decide the effect of this action on the part of the
prisoners' counsel, a rather interesting question might have
arisen. However, as ti.e case stands, the Court are of opinion
that the evidence was properly received, and the conviction must
be afSrmed.
Solicitors for prisoners : Bear <Sc Gorton, Thursday Island.
376
QUEENSLAND JUSTICE OF THE PEACE.
1900.
5th December.
Griffith G.J.
Cooper J.
Real J.
Griffith C.J.
[Full Court.]
MILLIS V. KIEFER, Ex parte KIEFER.
[10 Q.L.J. 142 ; N.C. 38.— Note.— Sec. 6 of 17 Vic, No. 3, is repealed, see now s.
445 of Criminal Code. See also Clifford v. White (4 Q.J.P.R. 132 ; 1910
S.R.Q. 364).]
The Cattle Stealing Prevention Act (17 Vic, No. 3), s. 6 — Illegally
using cattle — Taking out of possession not a using.
The driving of cattle from the possesaion of their owner to the land of the driver
for the purpose of there killing the cattle, is not a working or using of the cattle
within the meaning of s. 6 of The Cattle Stealing Prevention Act.
Motion to make absolute an order nisi calling upon the Justices
of Nanango and James Millis, the complainant, to show cause
why a conviction of the appellant on a charge of illegally using
cattle should not be set aside.
In this case the evidence before the convicting justices showed
that the defendant had taken two cows from the land of the
respondent and had driven them to his own land for the pur;
pose of slaughtering them there, but that they were there, at his
request, taken possession of by the police. The appellant, who
claimed that the cattle were his property, appealed from the
conviction upon the ground, inter alia, that there was no evidence
of any user by him of the cattle.
Lukin (with him Hart) for the appellant : There was no evidence
of user. There is no case where mere taking has been held an
offence under the section. The section was considered by our
Full Court in Emmerson v. Clarke (3 S.C.R. (Q.) 76), where it was
held that to constitute a user there must be a taking for the profit,
convenience, or pleasure, of the person taking. He also cited R.
V. Frew (7 S.C.R. N.S.W. (C.L.) Ill), In re Haughton (1 Q.L.R.
(Pt. II) 53), R. v. Collett (14 S.C.R. N.S.W. 291), Cunningham v.
McFarlane (1 Q.L.J. 49), Ex parte M'Intyre (Wilkinson p. 97),
and Ex parte M'Donald (1 N.S.W.L.R. 252).
Macgregor (with him O'SuMivan) for the respondent, cited Ex
parte Fox (2 S.C.R. N.S.W. (N.S.) 47) and R. v. M'Kenzie (5
N.S.W.L.R. 219).
O'Sullivan followed.
Lukin, as to costs, cited Holland v. Hartford (6 Q.L.J. 86).
Griffith C.J. : Although s. 6 of The Cattle Stealing Prevention
Act makes it a misdemeanour either to take, use, or work the cattle
CEIMINAL REPORTS, 1860-1907.
377
of another without his consent, the section imposes the penalty-
only for every head of cattle " used," and this Court has more than
once decided that justices have no jurisdiction except when
" using," as well as " taking " is proved. In this case, therefore,
the justices had jurisdiction to convict with respect only to cattle
proved to have been " used " by the defendant. The only evi-
dence is, as stated by Mr. Macgregor, that the defendant drove
the two cows in question to his own land for the purpose of killing
them. That is evidence of taking, but it is impossible to hold
that such a dealing with cattle is using, unless mere taking is using.
For that reason the justices should not have convicted, and the
.appeal must be allowed. The ordef will therefore be made
absolute, but under the circumstances with one half costs only.
Solicitor for appellant : J. F. Bergin.
Solicitors for the respondent : Atthow cfc McGregor.
MiLLISU. KlEFBB,
Ex parte Kiefeb.
Griffith C.J.
[Full Court.]
R. V. BENNETT.
[10 Q.L.J. 147 ; N.C. 42.]
Practice — Appeal — Misdirection — Isolated portions of summing up.
Isolated passages of a summing up will not be considered separately as grounds
for setting aside a verdict, but the whole summing up must be taken into con-
sideration. ,
On the trial of a prisoner for rape, the Judge in his summing up, after referring
to the evidence of a medical witness, remarked that the witness was apparently
of opinion that there had not been consent. He then added, " However, that
is not binding on you, but the question of consent or non-consent is entirely
for you upon the evidence as a whole."
Hdd {per Griffith C.J. and Cooper J., Real J. dissentienie), that there had been
no misdirection.
Crown Case Reserved by Noel A.J. on the trial of Ernest
Bennett on a charge of rape.
The prisoner was tried before Noel A.J. at the Rockhampton
Criminal Sittings. The special case stated by the learned judge
was as follows : —
The abovenamed prisoner was tried before me at the recent
sittings of the Supreme Court at Rockhampton on a charge of rape.
Mr. O'Rourke appeared for the prisoner.
1900.
1th December.
Grifflth G.J.
Cooper J.
Beat J.
378 QUEENSLAND JUSTICE OP THE PEACE.
E. V. Bennett. Francis Henry Vivian Voss, the Government Medical Ofl&cer
for Rockhampton, was called as a witness, and under cross-
examination, in allusion to his testimony in chief as to the appear-
ance of the victim's genital organs, said, " Her condition did not
necessarily preclude consent."
In answer to me Dr. Voss said, " Except for the bruise on the
thigh, the appearance of the vagina did not preclude consent, but
I would call attention to the drawers and the torn clothes gener-
ally."
Mr. O'Rourke did not object to this answer of Dr. Voss being'
recorded by me.
Sometime after the jury' had retired, Mr. O'Rourke stated that
he had to take exception to my summing up, and wished me to-
take a note.
After some degree of indefiniteness, the note I took was as
foUows : — Mr. O'Rourke takes the point that I had no right to-
say, but acted improperly in saying, to the jury, " that as Dr.
Voss in his evidence, while admitting that the appearance of the
vagina was compatible with consent, draws attention to the
condition of the clothes and the bruise on the thigh, he probably
came to the conclusion that there was no consent."
Mr. O'Rourke abandoned a further point that Dr. Voss should
not have been allowed to call attention as a fact to the condition
of the clothes, as it was not expert evidence.
After having made the above note of the point taken, I asked
Mr. O'Rourke what he wished me to do, as I must decline to recall
the jury to tell them I acted improperly.
Mr. O'Rourke did not press for a recall of the jury, but said he
was content with a note of the point having been made.
Subsequently, as Mr. O'Rourke had no recollection of my
having made use of the expression, " Dr. Voss probably came to
the conclusion," I, in order to clear up doubts, recalled the jury
ex mero motu, and re-directed them.
I said, " As some doubt has arisen whether I said in my charge
to you that Dr. Voss had probably come to the conclusion that
there was no consent, I now say that from the fact Dr. Voss called
attention to the bruise on the thigh and the state of the clothing,
that probably he came to the conclusion that there had been no
consent. However, whatever conclusion Dr. Voss came to on
that point is not binding on you, but the question of consent or
non-consent is entirely for you upon the evidence as a whole."
The jury found the prisoner guilty, and I directed sentence of
death to be recorded.
CEIMINAL REPORTS, 1860-1907.
37&
The questions for the opinion of the Judges of the Supreme
Court would appear to be : —
1. Did I act improperly in my summing up to the jury ?
2. If so, what order do the judges see fit to make ?
O'Eourke for the prisoner.
Griffith C.J. : This case arises in a singular way. The
prisoner was accused of having commited rape. A medical
witness was called, who gave some evidence as to the condition
in which he found the girl, and as to the state of her clothes,
from which it might be inferred that, in his opinion, the act had
not taken place with her consent. In the course of the summing
up to the jury the learned judge, after referring to the evidence,
remarked that it was apparently the opinion of the medical witness
that there was no consent, and added, " however that is not
binding on you ; the question of consent or non-consent is wholly
for you." It has often been laid down that isolated passages of a
judge's summing up cannot be picked out, but that the summing
up must be taken as a whole, and that unless so taken it is wrong,
the Court cannot set aside the verdict. In the present case I
cannot see that the learned judge was wrong in calling attention
to the evidence of the witness and in saying, " apparently this
witness thinks so and so ; but you are not bound by that at all."
The opinion of the witness was naturally to be inferred from his
answers, although he did not expressly give an opinion on the
point. It was contended that his opinion, if given, would have
been inadmissible, but I am not at all sure that it would have
been inadmissible. But, whether it would or not, I do not see
that there could be any objection to the judge calling attention
to what was already before the jury without objection, and point-
ing out that whether the doctor thought there was consent or not,
his opinion was not binding on the jury, but the question was one
entirely for them to decide. I do not see that any objection can
be taken to the summing up regarded as a whole.
CooPEE. J. : I am of the same opinion. From the evidence of
Dr. Voss I should say myself that the inference to be drawn was
that the doctor was of opinion that the girl did not consent.
Looking at that, I think the judge could refer to the doubt existing
on the point, and allude to the doctor's evidence. There might be
a difference of meaning as to the effect regarding the way in
which the Judge used the word binding. If he laid special
emphasis on the word, saying, " Whatever the doctor's con-
B. V. Bennett.
Griffith C.J.
Cooper J.
880
QUEENSLAND JUSTICE OP THE PEACE.
E. u. Bennett.
Cooper J.
Eeal J.
elusion, it is not absolutely binding on you," I think the summing
up might be open to objection. But when stated in the ordin-
ary way, I am of opinion that his remarks were free from objection.
Real J. : I agree with my brother Judges as to the rule laid
down, but I do not come to the same conclusion. I look at the
evidence given by Dr. Voss in the case. He was asked if the
condition of the vagina was such as to preclude consent, and the
ansAver given is " No." The learned Judge, considering that
ambiguous, asks further questions, when he answers, " Except
for the appearance of the thigh, the appearance of the vagina
was not such as would preclude consent." He then draws
attention to the clothes. That was not medical evidence, although
the doctor in giving it had a perfect right to do so. The
assumption would be that the doctor assumed these clothes were
worn at the time, and so gave his opinion ; in fact, he connected
the clothes with the state of the girl, and gave the opinion that
there was no consent. A question might have been raised as to
whether the evidence under the circumstances was admissible.
When the learned Judge directed the jury, Mr. O'Rourke raised
the point, and pointed out that the appearance of the vagina
was not compatible with the condition of no consent. I do not
see anything wrong with the summing up. It might be necessary
to draw attention to the fact that the doctor referred to the clothes,
and that his opinion was discounted by the statement that
without the clothes there was not sufficient evidence to prove
that there had been no consent. Having made the direction,
however, the learned Judge refused to alter it or admit that he
was wrong. Mr. O'Rourke did not press for the recall of the jury,
but was content that a note should be made of his objection.
Subsequently, as Mr. O'Rourke had no recollection of the Judge
having said, " Dr. Voss probably came to the conclusion," he
recalled the jury. This was after his summing up had been
challenged by counsel, who was taking matters calmly, and after
the Judge had time to think over what he had said. What was
the position, then ? The Judge had a perfect right to point
out that the doctor was a scientific witness, and that the doctor
considered the bruises on the thigh were indications of no consent,
and that he (the doctor) regarded the clothes as emphasising his
opinion. Now, what did the Judge do ? He stated, " Some
doubt has arisen as to whether I said in my summing up that
Dr. Voss had probably come to the conclusion that there was
no consent. I now say from the fact that Dr. Voss called
CRIMINAL REPOETS, 1860-1907.
381
attention to the bruises on the thigh he probably came to the
conclusion that there was no consent. However, whatever
conclusion he came to, that is not binding on you, and you have
to consider the question of consent as a whole." Instead of that
it should have been pointed out that Dr. ^'^oss did not use the
scientific part at all, and that he relied on the clothes in forming
his opinion. Leaving the matter ^ith the words, " the con-
clusion is not binding on you," I think was strong evidence to the
jury, and such as an ordinary jury would be very much influenced
by. I think the circumstances should have made the learned
Judge particularly careful that nothing in the shape of mis-
direction was driven home. Therefore, in this case, I am of opinion
that there were circumstances of misdirection, but solely after the
jury were recalled.
The conviction was affirmed.
Solicitor for prisoner : Grant, Rockhampton.
K. V. Bennett.
Eeal J.
[Full Court.]
R. V. BECKMANN.
[11 Q.L.J. 1 ; N.C. 1.]
Evidence — Criminal proceedings — Applicability of The Evidence
and Discovery Act (31 Vic, No. 13), to criminal proceedings.
Section 24 of The Evidence and Discovery Act of 1867 applies to criminal proceed-
ings as well as to proceedings on the civil side of the Courts.
Ceown Case Reserved by Chubb J. on the trial of Charles
Beckmann for murder.
The special case stated by the learned Judge was as follows : —
" The prisoner was tried at the Criminal Sittings of the Court at
TownsvUle on the 5th, 6th, and 7th days of March instant, before
me and a common jury upon an information charging him with the
wilful murder of one Alfred Anderson.
" In the course of the trial the Crown Prosecutor desired to
prove as part of the case for the Crown that two letters were in
the handwriting of the prisoner. To do this he called as a witness
a police constable, who produced a letter which he testified he
had seen the prisoner, while in custody, write, upon paper pro-
vided by the constable for the purpose, and which the prisoner
1901.
15th March.
Griffith G.J.
Cooper J,
Paul A.J.
382 QUEENSLAND JUSTICE OF THE PEACE.
R. V. Beckmann. signed with his name and handed to him for the purpose of being
delivered to the poUce magistrate at Bowen. This letter was
proved to my satisfaction to be genuine, and, on being tendered,
was admitted by me in evidence, no objection being taken to it by
counsel for the prisoner. The Crown Prosecutor then proposed
to prove the two letters previously mentioned and alleged to be in
the handwriting of the prisoner by comparison of the hand\iTiting
of these letters with the proved handwriting of the prisoner
in the letter admitted by me. A Mr. Henry De Burgh Anderson,
bank manager, Bowen, was called as a witness for this purpose.
He was examined as to his skill and experience in the comparison
of handwriting. I was satisfied that he was sufficiently skilled
to give evidence on the question coming within the authority
of The Queen v. Silverlock (1894 2 Q.B. 766), and no objection
was taken to his competency by counsel for the prisoner. The
witness then testified that, in his opinion, from a careful com-
parison of those two letters with the admitted letter proved to
be in the prisoner's handwriting, those two letters were also in
the prisoner's handwriting.
" The Crown Prosecutor then tendered the two letters in
evidence.
" Counsel for the prisoner objected to their admission on the
ground that comparison of a disputed handwriting with writing
proved to be genuine to the satisfaction of the Judge is not
permissible in criminal proceedings, and submitted that the
24th section of The Evidence and Discovery Act of 1867, under
which the evidence was tendered, applied only to civil proceedings.
" I overruled the objection, and admitted the evidence, which
was, in my opinion, very material and of great weight in support
of the case for the Crown, and upon the application of counsel
for the prisoner reserved the question of the admissibiUty of this
evidence for the consideration of the Supreme Court.
" The jury convicted the prisoner, and I pronounced judgment
upon the conviction, and passed sentence of death upon the
prisoner in the prescribed form. The prisoner is now in prison
awaiting execution.
" The question of law for the consideration of the Court is
whether the evidence objected to was rightly admitted."
Fewings, for prisoner : Section 24 of The Evidence and Discovery
Act of 1867 is merely a re-enactment of s. 15 of The Common Law
Procedure Act of 1867. That Act applied to civil proceedings
only, and, in the absence of words extending its application.
CRIMINAL REPOETS, 1860-1907.
383
-the re-enactment of the section in the Act of 1867 cannot be held
to have extended the rule to criminal proceedings.
Gkiffith C.J. : I have found some difficulty in following
the argument in this case. Before 1867 it had been enacted by
The Common Law Procedure Act of 1857, s. 15, that comparison
■of any disputed writing with any writing proved to the satis-
faction of the Judge to be genuine should be permitted to be made
by witnesses. That section was contained in an Act relating only
to civil proceedings on the common law side of the Court, and
apparently it did not apply to criminal proceedings. In the year
1865 the Imperial Legislature passed a section (28 Vic, c. 18,
s. 8), in precisely the same terms applying to criminal proceedings,
but that provision does not appear to have been adopted in
Queensland before 1867. In 1867 a great number of Acts were
consolidated, amongst those Acts being all the Acts relating to
evidence ; and The Evidence and Discovery Act, which is entitled
" An Act to consoUdate and amend the law of evidence and
discovery at common law," re-enacts this section without
any words of limitation to show that it is limited to civil cases.
It is simply enacted as part of the law of evidence. It is now
suggested that because the section was previously found in an
Act relating only to proceedings on the civil side of courts of
common law and did not apply to criminal proceedings, therefore,
although it is found in an entirely different collocation, in an
Act dealing with the law of evidence generally in all proceedings
of the Courts, it must still be read as applying to civil cases
only. I find difficulty in following the argument. It seems
to me that if it is necessary to draw any inference of intention
at all — if it is necessary to go beyond the words of the section,
which are plain enough — the inference is that the Legislature
intended to alter the law — ^that when they repealed an Act which
contained a provision which had a limited operation and re-
enacted the provision in a different collocation, where, prima
facie, it is used in a general sense, they intended that it should have
general application. But I see no necessity to go further than
the section itself. It is plain in its terms, and contains no words
of limitation, and I cannot see any reason why the Court should
read any into it. It is part of a law which applies to all the
Courts. In Victoria a similar point arose, and there it was taken
for gi'anted. I thought it had been taken for granted here ever
since 1867.
CooPEB and Paul JJ. concurred.
B. V. BSCKMANN.
Griffith C J.
Cooper J.
Paul A.J.
1901.
5th JuT.e.
884 QUEENSLAND JUSTICE OF THE PEACE.
R. V. FRIDAY, Ex parte FRIDAY.
[11 q.L.J. 26 ; N.C. 7.]
Fugitive O^enders Act, 1881 (44 and 45 Vic., c. 69), ss. 14, 19 —
Arrest of offender on charge of vagrancy — No evidence of offence
Chubb 3. charged — Admission of evidence before justice as to committal of
offence — Application not made in good faith or in the interests
of justice — Trivial case.
Prisoner, a, married woman, was arrested in Townsville on a warrant issued
by a Magistrate in Victoria on a charge of vagrancy. On an application to the
police magistrate under s. 14 of the Fugitive Offenders Act, 1881, to return
the prisoner to Victoria, the mother of the prisoner gave evidence that the prisoner,^
being then of the age of 15 years and unmarried, left the home of her parents
in Melbourne without their consent and went to Sydney, where she married a
man with whom she was proceeding, at the time of her arrest, to Japan, and
that she had, on the advice of the Victorian Police Department, charged the
prisoner with vagrancy, and obtained the issue of the Victorian warrant. No
evidence was given that the prisoner was without means of support. In reply,
the evidence of the prisoner was tendered, but the Magistrate refused to hear
her evidence, and ordered her return to Victoria.
On the return of a rule nisi, under s. 19 of the Act, appealing from that order,
Chubb J. held (1) — following In re Carlo Pedro (5 Q.L.J. 22) — that the magis-
trate was wrong in refusing to hear the accused ; and (2) that the application
was not made in the interests of justice nor in good faith, within the meaning
of s. 19 of the Act, and that the order must be set aside and the prisoner discharged.
Motion to make absolute a rule nisi granted by Chubb J. by-
way of appeal from an order made by the police magistrate
at Townsville, under s. 14 of the Fugitive Offenders Act, 1881,
ordering the prisoner to be returned to the State of Victoria.
The prisoner had been apprehended at Townsville upon a
warrant issued by a Victorian magistrate upon a complaint made
by the mother of the prisoner. Upon being brought before the
police magistrate at Townsville, the mother gave evidence, and
stated that the prisoner, her daughter, was 15 years of age ;
that she resided with her at Richmond, near Melbourne ; that
on the 30th April last the prisoner left her home without her
knowledge, then being unmarried, and went to Sydney, New
^outh Wales, where, on the first of May (as she had been informed),
she had married Sydney Friday, and on the next day left with
her husband for Japan ; that on the 4th of May she was advised
by the Melbourne police to charge her daughter with vagrancy,
and did so ; that her only object in making the complaint was
to get her daughter back, and that after the warrant was issued
CRIMINAL REPORTS, 1860-1907.
885
she consulted the Attorney-General of Victoria, and lett matters ^- "■ Pk?i>a^.
, , , , , TT- ■ T -S^ parte Pbidat.
in the hands of the Victorian pohce. The police magistrate
refused to hear the evidence of the prisoner which was tendered,
refused to make an order to discharge the prisoner from custody,
and ordered her to be returned to Victoria under the warrant.
A rule nisi to quash this order was granted by Chubb J., under
s. 19 of the Fugitive Offenders Act, on the following grounds : —
(1) That the prisoner was improperly arrested without a pro-
visional or endorsed warrant. (2) That the application for the
return of the prisoner was not made in good faith, in the interests
of justice or otherwise. (3) That the charge was trivial. (4) That
there was no evidence of the alleged offence having been com-
mitted. (5) That the police magistrate refused to receive
evidence of the prisoner tending to negative the offence charged.
Macnaughton, for the prisoner, abandoned the first ground,
the warrant having been endorsed by the Police Magistrate after
the arrest had been made.
Beaumont (Crown Solicitor) showed cause. The police magis-
trate had comphed with the provisions of s. 14 in being satisfied
that the warrant was duly issued, and of the identity of the
prisoner, and of the offence charged being within the Act. The
Court will not go behind the order.
Macnaughton, on the last ground, cited R. v. Smith (10 W.N.
(N.S.W.) 171).
Chube J. : In mj' opinion there was absolutely not a shred of Chubb J.
evidence of vagrancy to justify the issue of the warrant in Victoria.
The desire of the mother to regain her daughter was natural,
and it has my sincere sympathy, but Acts of Parliament are not
to be construed by sentiment. The Fugitive Offenders Act was
not passed to be made, by the invention of fictitious charges,
a vehicle for oppression, and the idea of a State displaying such
a tender regard for its idle and disorderly people, who, having no
visible lawful means of support, have left the State, by setting
in motion the Fugitive Offenders Act to bring them back again, is
too ridiculous for contemplation. Apart from the moral aspect,
the case is of a very trivial nature, and the application for the
return of the prisoner is admittedly and, in my judgment, certainly
not made in the interests of justice, nor in good faith, within the
meaning of the statute. Again, on the authority of R. v. Smith
(10 W.N. (N.S.W.) 171), and In re Carlo Pedro (5 Q.L.J. 22),
the police magistrate was wrong in refusing to hear the evidence
z
886
QUEENSLAND JUSTICE OP THE PEACE.
E. V. Pbiday,
Ex parte Pbiday.
Chubb J.
of the prisoner, and, having regard to all the circumstances
of the case, I think it would be unjust and oppressive to return
the prisoner. The appeal will therefore be allowed, and the rule
made absolute for the discharge of the prisoner absolutely.
Solicitor for prisoner : A. G. Unmack.
1901.
Urd September
Griffith G.J.
Cooper J.
Paul A.J.
[Full Court.]
REX V. MACDONALD, Ex j.arte STRUTT.
Ill Q.L.J. 85; N.C. 29.— Note.— See Commonwealth Extradition Act (No. 12 of
1903).]
Criminal law — Extradition — Treaty with the Netherlands — Treaty
not tendered in evidence — Judicial notice — Surrender of a
British subject — Extradition Act, 1870 (33 and 34 Vic, c. 52),
s. 5 — Evidence and Discovery Act of 1867 (31 Vic, No. 13),
s. ^9— The Evidence Act, 1898 (62 Vic, No. 15), s. 5.
By a treaty made in 1898 between her late Majesty and the Queen of the Nether-
lands, the contracting parties undertook to deliver up to each other reciprocally
fugitive offenders accused of certain specified offences, but it was provided that
either Government might, in its absolute discretion, refuse to surrender its own
subjects to the other Government. The surrender was requested by the diplo-
matic agent for the Netherlands in Queensland of a naturalised British subject,
on a charge of larceny or fraud as a bailee, one of the specified offences above
referred to, of the commission of which he was alleged to have been guilty.
The warrant granted by the Lieutenant-Governor of Queensland for the prisoner's
arrest was expressed to be issued in pursuance of the treaty made in 1898.
The Police Magistrate committed the prisoner. The only treaty tendered in
evidence was one made in 1874, which was admittedly superseded by that made
in 1898. Depositions taken in Batavia, and which were before the magistrate,
showed that the prisoner had been guilty of acts which would amount to larceny
as a bailee if committed in England.
Hdd, on a motion to show cause why a habeas corpus should not issue, that the
Court, being bound to take judicial notice of Acts of State, must regard the
Order-in-Council which contained the treaty of 1898 and made the Extradition
Acts apply in the case of the Netherlands, though the same was not tendered
in evidence before the magistrate.
Hdd, further, that there being sufficient evidence before the magistrate to justify,
according to the law of England the committal for trial of the prisoner, had the
crime of which he was accused been committed in England, he was lawfully in
custody.
CRIMINAL REPORTS, 1860-1907. S87
Hdd also, that under this treaty it is for the Executive Government to determine Bex v.
whether a naturalised subject should be surrendered and not for the Court. ^^ parte Steu'tt.
Semble, that s. 5 of The Evidence Act, 1898 (62 Vic, No. 15), does not apply to
orders of the Privy Council issued in accordance with s. 6 of The Extradition
Act, 1870.
Motion to make absolute a rule nisi calling upon J. Macdonald
to show cause why a writ of habeas corpus should not issue to
bring up the body of Julius Strutt, a confinee in the Brisbane
Gaol.
By a treaty made between Her late Majesty and the Queen of
Netherlands in 1898 it was agreed that the high contracting
parties should, on requisition made in their name by their res-
pective diplomatic agents, deliver up to each other reciprocally
any persons who, being accused or convicted of certain specified
crimes committed within the territories of the requiring party,
should be found within the territories of the other party. It was
further provided that either Government might, in its absolute
discretion, refuse to surrender its own subjects to the other
Government. By an Order in Council it was directed that the
Extradition Acts should apply in the case of this treaty from the
14th March, 1899.
The prisoner, Julius Strutt, who had been naturalised in
Queensland since the alleged offence, was arrested by virtue of a
warrant granted by the Lieutenant-Governor of this State. The
warrant was expressed to be issued in pursuance of the before-
mentioned treaty, and recited that a request had been made for
the prisoner's surrender by the diplomatic agent for the Nether-
lands for the crime of larceny or fraud by a bailee (which was one
of the offences specified in the treaty), alleged to have been
committed in Batavia, a possession of the Netherlands. The
prisoner was committed by the police magistrate at Brisbane
with a view to his surrender.
The requisition for the prisoner's extradition, upon which the
Lieutenant-Goveror issued his warrant, was accompanied by a
warrant of arrest issued by the competent authority of the
Netherlands Government and by depositions taken in Batavia,
which showed that the prisoner had first pawned jewellery en-
trusted to him for repairs, and had subsequently redeemed and
sold the same. The foreign warrant and these depositions were
admitted in evidence before the magistrate under s. 15 of The
Extradition Act, 1870. The only evidence of an extradition
treaty offered before the Magistrate was a copy of the Government
888 QUEENSLAND JUSTICE OF THE PEACE.
Eex v. Gazette containing a copy of a treaty made in 1874 between Her
MaODONALD, ^ •^•' , , 1 mi • J i 1 1
Ex parte SmuTT. late Majesty and the King of Netherlands. Ihis treaty had
in point of fact been superseded by that made in 1898. A rule
nisi for a habeas corpus was granted on the following grounds : —
(1) That no extraditable offence within the treaty of 1874 was
proved by the depositions or documents ; (2) that the apphcant
was a naturahsed British subject, and consequently could not be
surrendered. (This point was taken under the treaty of 1874,
which contained a provision to that effect).
Fewings (with him Blair) moved the rule absolute.
Sydes, for the Crown : It is pointed out that the treaty of 1874
has been superseded by that of 1898.
Fewings : The warrant by virtue of which the prisoner was
arrested was granted under the treaty made in 1898. And the
only treaty before the magistrates was that of 1874. It is ad-
mitted that is gone. The prisoner is therefore wrongfully detained.
Griffith C.J. : Does not a treaty form part of the law of the
realm, and should not we, as judges, take notice of it ?
Fewings : The treaty must be proved in the usual fashion —
that is, the treaty itself, or the London Gazette containing a copy
of the same must be tendered in evidence before the magistrate.
(Section 5 of The Evidence Act, 1898). The" Court cannot take
judicial notice of a treaty. In this case the treaty is set out in
an order of the Privy Council, and is pubUshed in the London
Gazette. He referred to Taylor on Evidence (9th Ed. Vol. 2, 1526
and 1528), as to proof of proclamations, and to s. 39 of The Evi-
dence and Discovery Act of 1867 as to the mode of proving treaties.
Griffith C.J. : All this Court has to decide is whether the
prisoner ought to be extradited. You contend that there is no
evidence of a treaty ; that the treaty of 1874 is the only one in
evidence, under which you say he is not shown to be guilty of an
extradition offence ; and that the warrant for his arrest is issued
under the treaty made in 1898. The question then arises, " Are
we at hberty to look at the latter treaty which the counsel for
the Crown says he holds in his hand, although it was not pro-
duced before the magistrates." In other words, may we take
judicial notice of the Queen's Orders in Council without proof ?
I think we may. At any rate, there is nothing to prevent us
taking fresh evidence.
Fewings : The word " proof " used in the Evidence Acts ex-
cludes the idea of judicial notice. (Phipson on Evidence, 1898,
CRIMINAL REPORTS, 1860-1907. 389
Ed., p. 512) ; Attorney-General v. Theakstone, 8 Price 89 ; The I^^x v.
Olivia, Lush. 497). He again referred to s. 5 of The Evidence Act, ex parte Stru'it.
1898.
Griffith C.J. : Surely that section cannot apply to cases
coming within the Extradition Acts. Section 5 of The Extradition
Act, 1870, says, that upon the happening of a certain event, that
is to say, upon a publication of the order applying the Act in the
case of any foreign State, the treaty shall form part of the law of
the land. Has that event happened ? If so, surely we must take
judicial notice of the treaty.
Fewings : We do not contend there has been no publication.
Griffith C.J. referred to Armstrong v. United States (13
Wallace 154).
Sydes : The warrant which was in evidence refers to the treaty
made in 1898. Treaties are Acts of State, and the Court will take
judicial notice of them on that account. (Taylor on Evidence,
9th Ed., p. 4.)
Griffith C.J. : This is a case in which a prisoner is under com- CJriffith c J.
mittal under a warrant purporting to be issued under The Ex-
tradition Act of 1870. That Act provides that when a fugitive
criminal is committed to prison he is not to be surrendered until
after the expiration of fifteen days, during which he may apply
for a writ of habeas corpus. Nothing is said as to the grounds
upon which the Court that issues the writ is to decide the case.
That seems to be left very much at large. I suppose the intention
is that the Court before whom the matter comes, is to enquire
whether the fugitive criminal is liable to extradition under the
provisions of the Act. In the present case a rule nisi has been
granted, and the ■writ has not been formally issued. The con-
tention made by the prisoner is that this Court is bound to act
upon the assumption that there is no extradition treaty in exist-
ence between Great Britain and the Netherlands, because the
treaty was not formally proved before the police magistrate who
committed him for extradition. But is that the law ? The
scheme of The Extradition Act is that treaties of mutual extra-
dition may be made between Great Britain and foreign countries,
and that when a treaty of that kind has been made the provisions
of the Act are to apply. Section 5 provides that when an Order
in Council applying the Act to the case of any foreign State has
been pubhshed in the London Gazette, " this Act shall, so long as
the Order remains in force .... apply in the case of such
890
QUEENSLAND jaSTICE OF THE PEACE.
Rex v.
Macdokald,
Ex parte Stbdit.
Griffith C.J,
foreign State." It goes on to provide that "the Order-in-
Council shall be conclusive evidence that the Act applies in the
case of the foreign States mentioned, and that the validity of the
order shall not be questioned in any legal proceedings whatever."
The efiect of that is that vi'hen the Order applying the Act has
been pubUshed in the Gazette, The Extradition Act applies to the
foreign State mentioned in the Order as fully as if it had been
mentioned in the Act itself. Whether the Act appHes to a
particular foreign State or not is part of the law of the realm
with which judicial tribunals are supposed to be acquainted,
and if by any defect of memory or want of instruction they have
not the requisite information, it is their duty to inform themselves.
It must be remembered that the judicial power is a branch of the
Sovereign power of the State. This is a question of a bargain
between the two Sovereign States. The Sovereign does not
exercise the judicial powers of sovereignty personally, but delegates
them to judicial ofi&cers. It would be a reasonable ground of
complaint by a foreign State after it had entered into a treaty
of that kind, if the objection could be taken that the officer
appointed to perform the functions of the Sovereign had for-
gotten the bargain he was appointed to administer. It would
be a very singular thing to say to a foreign State complaining of a
refusal of extradition that, when the case came before a poUce
magistrate in a remote part of the Empire, he quite forgot to have
a copy of the treaty laid upon his desk. Would not such an
argument be the height of absurdity ? Moreover, under the
Acts as framed, and until the Queensland Act of 1877, the
duties, which under the local Act are performed by a police
magistrate were performed by the Governor of the Colony,
an officer who, from the nature of his office, would naturally
be acquainted with existing treaties, and would have copies
of them on record in his office. Surely it cannot be that it
was necessary at the time for the Governor to formally take
this treaty down from his shelves and put it before him on his
desk, and that otherwise the proceedings would have been invaUd '
And, when the duties originally cast on the Governor were trans-
ferred to the police magistrate, I fail to see how this imputed
knowledge of the substituted officer could be in any way altered.
If it was the duty of the Governor to know, it was equally the
duty of the police magistrate, and, still more, it is the duty of this
Court to know what is the law of this country ; and it is part of the
law of the whole realm that The Extradition Act applies to the
Griffith C.J.
CEIMINAL EEPORTS, 1860-1907. 891
Netherlands if, as a matter of fact, the Order-in-Council has ^^^ «'•
been published in the London Gazette. That is not disputed, Ex parte Stru'it.
and we are bound to take notice of it as an Act of State just as
we are of the passing of an Act of Parliament. That is clearly
the law of America. (Armstrong v. The United States, 13 Wallace,
Vol. 80, S.C.R., p. 155). I have no hesitation in saying that, in
my opinion, Orders-in-Council appljring The Extradition Act to
any foreign State are Acts of State of which this Court is bound
to take notice.
But supposing the technical objection that the treaty should
have been formally laid before the police magistrate is a good one,
still, when the matter comes before us it is our duty to enquire
whether this man ought or ought not to remain in custody for
the purpose of extradition. It is our duty to enquire what is the
law — whether The Extradition Act applies to the Kingdom of the
Netherlands or not, and, if so, what are the terms of the Extra-
dition Treaty. We are bound to make that enquiry before we
can do justice between the country asking the extradition and
Great Britain, and for that purpose we will, if necessary, look
at the Gazette, which the police magistrate ought to have done.
Having done so, we satisfy ourselves of the fact that the treaty is
binding upon us as part of the law of the realm. This objection,
therefore, fails, and the case ought to proceed on the assumption
that the treaty of 1898 is before the Court, and that we are bound
to take judicial notice of it.
Fewings : As to the merits, the charge against the prisoner
was that of larceny or fraud as a bailee. The prisoner admits
his identity, and that he sold the article alleged to have been
stolen, but says that the same was deUvered to him to be repaired,
and that because hischarges were not satisfied he parted with the
article in question, as he was entitled to do by the law of Batavia.
No evidence was given to the contrary in the Court below. The
onus is on the Crown to show that this is an extraditable offence.
The Crown must show that his acts are punishable as a crime in
the Netherlands.
Gkiffith C.J. : The warrant for the prisoner's arrest, issued
by the Netherlands State authorities, and the depositions which
accompany it, show that the prisoner has been guilty of acts
which would amount to the crime charged had those acts been
committed in England.
Fewings : Again, the prisoner is a naturahsed British subject,
(In re Salwey, 1896, 1 Q.B. 230). The words of the 1898 treaty
392
QUEENSLAND JUSTICE OP THE PEACE.
are that either Government may, in its absolute discretion,
Kex v.
Maodonald,
Ex parte Stedtt. refuse to Surrender its own subjects.
Griffith C.J. [Griffith C.J. : Exactly. That is a matter for the Executive
Government. It does not concern this Court.]
Griffith C.J. : The duty of a police magistrate is prescribed
by s. 10 of the Act, which provides that if the foreign warrant is
duly authenticated, and if such evidence is produced as would,
according to the law of England, justify a committal for trial
of the prisoner if the crime of which he is accused had been com-
mitted in England, the poUce magistrate shall commit him.
It is not disputed that the evidence, according to the law of
England, would justify his committal for trial if the Offence had
been committed in England or in Queensland, so that there is
nothing more in the case, and the habeas corpus ought not to be
granted. The rule will be discharged.
Solicitor for applicant : Petrie.
Solicitor for respondent : C. Powers, Crown Solicitor.
1901.
29* ft October.
Griffith C.J.
Cooper J.
Paul A.J.
[Full Court.]
R. V. WHITEHOUSE.
[11 Q.L.J. 141 ; N.C. 47.]
Criminal law — False pretences — Evidence — Admissibility.
The prisoner was charged with obtaining goods by falsely pretending that having
lost his portmanteau, containing clothing and other property, on the railway
between Brisbane and Maryborough, the Commissioner for Railways for Queens-
land had authorised the prisoner to obtain on his credit such goods as he actually
stood in need of.
Held, that the evidence of the Chief Clerk to the Commissioner, who had charge
of the correspondence which passed between the prisoner's solicitors and. the
Commissioner relative to the alleged loss, was admissible to prove the falsity of
the statement, and that it was not necessary to call the Commissioner as a witness.
Crown Case Reserved under s. 668 of the Criminal Code by
Paul A.J.
The prisoner was tried at the Criminal Sittings of the Circuit
Court at Bundaberg upon an information charging him with
obtaining goods to the value of £9 18s. 3d. by false pretences.
CRIMINAL REPORTS, 1860-1907. 393
The representations alleged to be false were, so far as is material, ^- *• Whitehouse
<1) that prisoner's name was F. Granville White ; (2) that he had
recently come to Queensland from England ; (3) that he was
the authorised representative of the Liverpool Mercury, and in
receipt of a salary of £100 per month ; and (4) that having lost his
portmanteau containing clothing and other property on the
xailway between Brisbane and Maryborough, the Commissioner
for Railways for Queensland had authorised him to obtain
such goods as he actually stood in need of.
The facts appearing from the case were shortly as follows : —
The prisoner was discharged from St. Helena prison on 25th
June, 1901, after serving a sentence of two years for bigamy.
He arrived in Bundaberg in July, and on 18th of that month,
called at the shop of the prosecutor, Edward Turner, stated that
his name was F. Granville White, and that he was authorised to
write up colonial industries, but particularly the sugar industry
in Queensland ; that he had landed in Melbourne, and had but
lately come from England ; that he had lost a portmanteau
between Brisbane and Maryborough through the carelessness of
the Railway Commissioner. At the same time he showed Turner
a list of goods which he said he had lost, and stated that he was
in receipt of £100 a month as salary as representative of the
Liverpool Mercury. Later on in the same month prisoner came
again to Turner, and then alleged that he was authorised by the
Railway Commissioner to get such goods as he actually stood in
need of, and that the Commissioner admitted the loss of the
portmanteau. Turner then delivered to him goods valued at
£9 18s. 3d., which he swore that he parted with on the faith of
the prisoner's statements. The Chief Clerk to the Commissioner
for Railways, who had charge of the correspondence between the
prisoner's solicitors and the Commissioner relative to the alleged
loss of the portmanteau, gave evidence tending to show the
falsity of the statement that the prisoner had the Commissioner's
authority to pledge his credit for the goods in question. At the
request of the prisoner, who was undefended, the following points
were reserved for the opinion of the Court : — (1) Whether the
evidence of the Chief Clerk was admissible ; (2) whether the
Commissioner should have been called to deny the prisoner's
statement {i.e., that he had given the prisoner authority to
obtain the goods) ; (3) whether there was any evidence to support
a conviction.
The point taken by the prisoner with respect to the second
894 QUEENSLAND JUSTICE OF THE PEACE.
E. V. Whitebouse question was that the witness did not present any authority
to act on behalf of or represent the Commissioner.
The jury convicted the prisoner.
The -prisoner in person : Turner admitted that he parted with
the goods because I said that I was the representative of the
Liverpool Mercury, and that I had authority from the Railway
Commissioner to purchase such articles as I might stand in need
of. The clerk to the Commissioner for Railways could not
possibly have any knowledge of what the Commissioner had said
to me. In fact, the clerk said that he received his instructions
from the secretary to the Commissioner, who in return received
them from the Commissioner. There is no evidence to disprove
that I had an appointment from the Liverpool Mercury.
Kingsbury, for the Crown, contended that the evidence of the
Chief Clerk was rightly admitted, as he was in charge of the
correspondence, and the prisoner had no communication with the
Commissioner save by letter. As to the other point, there was
evidence that the prisoner had admitted to the arresting constable
the falsity of the statement relative to his being the representative
of the Liverpool Mercury.
Griffith C.J. Gbiefith C.J. : With respect to the point taken that there was
no evidence as to the falsity of the statement that the prisoner
was the representative of the Liverpool Mercury, it is not necessary
to decide whether proof of the fact that when he said he was
engaged by that newspaper, he was in fact undergoing a sentence
of imprisonment in St. Helena would be sufficient evidence,
because, apart from that evidence, the evidence of the arresting
constable shows that the prisoner admitted that the statement
be had made with respect to the Liverpool Mercury was untrue.
With respect to the statements about the Commissioner for
Railways and their falsity, prisoner, in his argument, seemed to
think that the witness Lewis was allowed to give evidence which
could only be given by the Commissioner for Railways, and he
says that a man cannot give evidence by deputy. Of course
he cannot, but Lewis was called to give evidence of facts within
his own knowledge. It appeared from the evidence in the case
that the communications between the prisoner and the Com-
missioner had been in writing in the ordinary course of official
business, and that the witness was aware of what those com-
munications had been. They were all produced. The witness
was not aware of any such promise or authority as was alleged
CRIMINAL REPORTS, 1860-1907. 395
by the prisoner having been given by the Department in the ^- "■ Whitehodse
ordinary course of its business. When the transactions of a Griffiith C.J.
public department have to be proved in a court of justice, it is not
usually necessary to call the head of the department. The
Commissioner for Railways is a corporation sole. He carries
on his business, like the heads of other departments, by his
officers, and an officer cognisant of what goes on is competent to
say what takes place, and what does not take place. He was
not called upon to repeat anything that the Commissioner had
said or written, but to prove a fact which the jury might believe to
be within his knowledge from the manner in which the business
of the Department is conducted, and from the duties which he
performed — namely, that the authority stated by the prisoner
to have been given had not been given. To prove that an alleged
event did not happen is a very different thing from giving
secondary evidence of a conversation. There was sufficient
evidence that the Commissioner had not done what he was alleged
to have done. The conviction will be affirmed.
Sohcitor for Crown : C. Powers, Crown Solicitor.
R. V. HUME.
[11 Q.L.J. N.C. 31.— Note.— See R. v. Twynings (4 Q.J.P.R. 1).]
Criminal law — Evidence — Bight of prisoner to cross-examine a 1901.
,.,/-( 8th October.
Witness for the Crown.
The Crown is not bound to tender for cross-examination a
person who was a witness for the prosecution in the lower Court
where it is not intended to call him in the higher Court, but such
person should be present in case the prisoner desires to call him
for the defence.
Cooper J.
396 QUEENSLAND JUSTICE OF THE PEACE.
R. V. JOCUMSEN.
[11 Q.L.J. N.C. 32.]
1901. Unlawfully wounding — Assault — Criminal Code {s. 575).
9th OctohcT,
On an indictment for unlawfully wounding a verdict may be
'^'"'^^'' "^^ returned against a prisoner for common assault (see R. v. Taylor,
L.R. 1 C.C.R. 194). The Criminal Code has not altered the law
in that respect.
R. V. WHITEHOUSE.
[11 Q.L.J. N.C. 33.— Note.— See s. 619 of Criminal Code. See B. v. Walsh and
Bunting, 1902 S.R.Q. 6, post]
1901. Criminal Code, s. 619 — Address by prisoner — Right of Crown to
15th October. cross-examine.
Paul A.J.
A PEisoNER, who was undefended, called no evidence, but
in his address to the jury proceeded to state facts and deny others.
Held, that his remarks must be confined to summarising or
commenting upon the evidence, otherwise counsel for the Crown
vs'ould be entitled to cross-examine him.
[Full Cotjet.]
R. V. HULL.
[1902 S.R.Q. 1 ; Q.W.N. 7.— Note.— Case referred to in R. v. Millewski (1 Q.J.P.R.
at 183 ; 1908 S.R.Q. at 34).]
1901. Criminal law — False pretences — Evidence of intent — Admissihility.
9th,13th December
— — Letters written to a person charged with obtaining money by false pretences,
Chubb J ' showing that he had been engaged in a long-continued scheme of fraud of the same
Paul A.J. character were found in his possession, and were tendered in evidence against
him to prove criminal intent. Held, that they were rightly admitted. But
letters written to him, and found in his possession, tending to show he was of
bad character, which did not connect the prisoner with any such scheme, Hdd^
not admissible.
Crown Case Reserved by Cooper J.
The amended case was as follows : —
The above mentioned prisoner was tried before me at the
Brisbane Sittings, on the 8th, 12th and 13th November, 1901,
CRIMINAL REPORTS, 1860-1907. 397
and was defended by Mr. Macgregor. The indictment con- ^- "• ■^"^^-
tained two counts, in one of which the prisoner was charged
mth having obtained a sum of £25 from a man named James
Thomas Isles, by falsely pretending that two telegrams sent
from New South Wales were sent by the prisoner's brother, A. E.
Hull. In the second count the prisoner was charged with having
obtained a sum of £115 from Isles, by falsely pretending that the
said telegrams contained a genuine offer of a sum of money,
which he (the prisoner) could obtain by going to Sydney, and
there completing an agreement mentioned in the said telegram.
It was proved that the prisoner sent a clerk to Sydney with
instructions to send, on his arrival, the first of the telegrams
mentioned, and, on receipt of a* telegram from the prisoner, to
send the second fictitious telegram.
There was abundant evidence that Isles parted with his money
on the faith of those telegrams.
After receiving the money the prisoner left Queensland, and
did not return till he was brought back in custody.
During his absence his landlord distrained upon the effects in
the prisoner's office for rent, and the goods were sold by auction.
Among them were the contents of the safe, which was the property
of the landlord. The prisoner, having taken with him the key
of the safe, the latter was opened by a locksmith, and the con-
tents, including certain letters and papers, were handed to Isles,
who was the purchaser of the prisoner's effects at the sale.
One of those letters was signed by A. E. Hull (Exhibit 14), and
one was signed by Bower, the prisoner's partner (Exhibit 15).
Some of the letters were in the prisoner's handwriting, and some
were in the handwriting of a woman, of which latter a few were
addressed to the prisoner, and others to the woman's daughter.
AU of them had been opened and apparently read before they
had been deposited in the safe. All these letters were tendered in
evidence. Exhibit 14 and Exhibit 15, and some others, were
objected to by Mr. Macgregor on the ground that they were
irrelevant as not being sufficiently connected with the prisoner,
and were admitted by me. Certain passages in the woman'&
letters tended to support the story told by the prisoner's clerk
that he had been sent by the prisoner to Sydney so as to insure
the despatch of the incriminating telegrams.
In summing up I omitted all reference to Exhibits 14 and 15.
At the close of the case for the Crown, Mr. Macgregor intimated
that he would call no evidence for the defence, and made applica-
398 QUEENSLAND JUSTICE OF THE PEACE.
li, t^HuLL. ^JQjj ^o jjjg under s. 668 of the Criminal Code to reserve this
question for the opinion of the Full Court.
The question for the Court is whether the documents found in
prisoner's safe were rightly admitted in evidence.
The prisoner was convicted, and I sentenced him to two years'
imprisonment, with hard labour.
I append to this case a copy of the indictment, and of my notes
of the trial, and the exhibits which were found in the safe.
Pope A. Cooper. J^
The letter signed by the prisoner's brother (Exhibit 14) con-
tained the following words : — " What are you doing, or living as
usual on your wits ? I would have written to you long ago had
I your address. I only got it from mother to-day ; I suppose
it is bogus."
The case was in the Paper for argument on the 9th December,
when Macgregor, who appeared for the prisoner, informed the
Court that the case as stated did not raise the exact point on
which he had relied when objecting to the admission of the
evidence, and asked to have the case amended to show the nature
of his objection.
[Geifeith C.J. referred to E. v. Pieremont (1885, 2 Q.L.J. 43),
and suggested that counsel should see the Judge in reference
to the requisite amendments.]
This was done ; the case was amended as above, and on the
12th December,
Macgregor, for the prisoner : All the letters are irrelevant to the
present issue and inadmissible — first, as they have not been con-
nected with the prisoner's possession or even knowledge ; and,
secondly, as they refer only to previous frauds or attempted
frauds distinct from the present charge. Their only effect in
the present case can be to prove general bad character. [Powell
on Evidence, p. 470 ; R. v. Oddy (1851, 2 Den. C.C. 264), R. v.
Millard (1813, Russ. & Ry. C.C. 246), R. v. Holt (1859, BeU C.C.
280).] The conviction must be quashed. It is not saved by
s. 671 of The Criminal Code.
Kingsbury, for the Crown : The letters are admissible to show a
course of fraud similar in character to that with which the prisoner
was charged and to show a previous attempt to cheat Isles.
[R. V. Barrett (1840, 9 Car. & P. 387), R. v. Francis (1873, 43
1..J.M.C. 99), Makin v. The Attorney-General for New South
Wales ([1894] A.C. 57), R. v. Rhodes ([1899] 1 Q.B. 77), R. v.
CEIMINAL EEPORTS, 1860-1907.
399
Ollis {[1900] 2 Q.B. 758), E. v. Richardson (1861, 8 Cox C.C. 448),
R. V. Forbes (1835, 7 Car. & P. 224), E. v. Meek (1861, 8 Cox
C.C. at p. 457).
Macgregor, in reply : Evidence can only be admitted to prove
guilty knowledge of the particular transaction with which he
is charged ; in fact that he knew the telegrams to be false [R. v.
Moore (1890, 16 V.L.R. 129, 11 A.L.T. 151)], and the letters
objected to supply no evidence of that. As to effect of inadmis
sible evidence, R. v. Saunders ([1899] 1 Q.B. 490), MacLeod v.
Attorney-General ([1891] A.C. 455).
December 13th.
Griffith C.J. : There seems to have been some misunderstand-
ing at the trial as to the real nature of the objection taken by
prisoner's counsel, and the difficulty is still not altogether removed.
Prisoner was indicted for obtaining money by false pretences,
and amongst the evidence that was tendered against him were a
number of letters, which were found in his safe, and some of
which tended to show that he had been engaged for some months
in similar schemes for defrauding the same person. The fraud in
this particular instance was by similar methods — that is to say, by
getting false reports sent to him from a distance as to the value of
property. The letters were found in his safe in his absence,
he having apparently absconded. Objection was taken that they
were inadmissible on the ground — the learned 'Judge says — that
they were irrelevant, as being not sufficiently connected with
the prisoner ; by which the learned Judge evidently understood
the objection to be that the finding of the letters in his safe was
not sufficient to show that they had ever come to his knoi^ledge ;
not that they were entirely irrelevant, and altogether extraneous
to the case. Mr. Macgregor says that that was not what he meant,
but that he meant they had nothing to do with the case ; that is
to say, if they tended to show that the prisoner had previously
been engaged in similar frauds, that only tended to show that he
was a man of bad character, evidence of which was clearly not
admissible. We are all of opinion that the letters with one
exception were admissible as showing that prisoner was engaged
in a long continued scheme to defraud the same person. It was
the same sort of fraud all along. The only difficulty would be the
interval of six months from the first of the letters ; that might
weaken the effect of the evidence, but did not make the letters
inadmissible. But there is one letter to which no particular
attention appears to have been directed — I doubt whether the
E. V. Hull.
Griffith C J.
400
QUEENSLAND JUSTICE OF THE PEACE.
E. V. Hull.
Griffith C.J.
Chubb 3.
Paul A.J.
Judge ever saw it — which does not appear to come within that
category ; that is the letter from the prisoner's brother in Sydney,
which contained the words, " What are you doing, or Uving a&
usual on your wits ? I would have written to you long ago had I
your address. I only got it to-day from mother. I suppose it is
bogus." That is like evidence of general bad character. If such
evidence was given it would be inadmissible and would vitiate
the conviction. That letter clearly had nothing to do with the
case, and was inadmissible. It was, however, admitted ; and
the conviction must fail. Probably the jury never looked at
it, the learned Judge may not have seen it, but the conviction
must be quashed ; and, as Lord Russell said in a case quoted
during the argument, it is with regret that I come to that con-
clusion.
Chubb J. and Paul A.J. concurred.
Conviction quashed.
Sohcitor for the prisoner : A. Down.
SoUcitor for Crown : The Crown Solicitor.
1901.
9th Deceviber.
Griffith G.J.
Chubb J.
Patd A.J.
[Full Couet.]
REX V. WALSH AND BUNTING.
L1902 S.R.Q. 6.— Note.— See R. v. Whitehouse, (11 Q.L.J. N.C. 33) ante p. 396.]
Practise — Criminal law — Address by accused — Undefended by
counsel — Eight of reply — Mis-trial — New trial — The Criminal
Code Act, 1899, s. 3 (4:)— The Criminal Code (63 Vic, No. 9,
Schedule 1), ss. 619, 669.
If evidence is not adduced for an accused person undefended by cousel, though
the accused person in addressing the jury makes a Statement of fact, the counsel
for the Crown is not entitled to a reply.
The Criminal Code does not alter the law relating to new trials in criminal cases.
Crown Case Reserved under s. 668 of The Criminal Code
by Chubb J.
The prisoners were tried before Chubb J. and a jury, at Charters
Towers, on a joint indictment charging them with stealing in a
dweUing-house. There was a secoild count for receiving. They
were undefended, and did not call any evidence. Each of them,
however, addressed the jury, maklhg statements of fact, and on
CRIMINAL EEPORTS, 1860-1907.
401
the Crown Prosecutor claiming the right to reply thereto, it was
allowed by the learned Judge. They were convicted. The
learned Judge, feeling doubtful whether any right of reply existed,
reserved that question of laM' for the consideration of the Supreme
Court.
Garrick, for the prisoners : No right of reply exists. [Criminal
Code, s. 619 ; Reg. v. Hennessy (1866, 1 Q.S.C.R. 147).] There
has been a mis-trial, and the conviction must be quashed. He
was stopped by the Court.
Kingsbury, for the Crown : The right of reply does exist. [iJ. v.
Leivis (1865, 1 Q.S.C.R. 138).] Assuming that there was no
right of reply, the Court should order a new trial. [Criminal
Code, s. 669, subsec. e.]
[Griffith C.J. : That subsection does not give the power. It is
merely a re-statement of the former law ; and any cases in which it
has been held that the Court has power to grant a new trial have
been overruled by Attorney-General of N.S.W. v. Bertrand (1867,
L.R. 1 P.C. 520), and Attorney-General of N.S.W. v. Murphy
(1869, 11 Cox C.C. 372).]
Chubb J. : As I was the Judge who tried this case, the Chief
Justice has requested me to deliver my judgment before his. This
question comes up for decision upon a question of law reserved
by me, and perhaps I may state at once the circumstance under
which the point came to be reserved. At the trial the learned
Crown Prosecutor, after the speeches of the prisoners, claimed the
right to reply. I said, " You have no such right." He then read
s. 619 of The Criminal Code, and pressed the point. I allowed
him to reply. On again reading the section I, next morning, drew
his attention to the words, " when defended by counsel," the
effect of which I thought he had not fully appreciated. My
impression at the time was that no right of reply existed in such
a case. It has occasionally been allowed, but is by no means
the universal practice. The Code in s. 619 refers to what speeches
may be made, and expressly enacts what can be done in certain
cases when accused is defended by counsel, but it does not state
what is to be done when accused is undefended, and I think that
where prisoners are undefended there is no right of reply by the
Crown counsel unless he is a Crown law officer. That, I think,
is sufficient to determine the case, and the conviction must be
quashed. I cannot agree with the argument of Mr. Kingsbury that
AA
Kex V. Walsh aud
Bdnting.
Chubb J.
402 QUEENSLAND JUSTICE OF THE PEACE.
Eex U.Walsh and a new trial may be granted. I have not known it to have been
■ done in a case of this kind, where the offence is in the nature of a
Chubb J. " crime " as defined by The Criminal Code, even if it may be
done where the offence is a misdemeanour.
Griffith C.J. Geiffith C.J. : I am of the same opinion. The right of reply
— the right of the last word — is regarded as of great importance
by many people, and before some tribunals, probably, it is of
considerable value. At any rate the practice has always been to
treat it as of great value, and it has been the subject of many
decisions on the criminal side. Until comparatively recently
prisoners were not allowed to be defended by counsel at all.
When they were so allowed they were not permitted to speak for
themselves. Then it was said this was a hardship, and in an
address to a jury it would be said, " my unfortunate cUent has his
mouth stopped." It was then decided to allow the prisoner to
make a statement, and the question arose whether there was a
right of reply under such circumstances, whether the statement
made by the prisoner alleging new facts could be regarded as
evidence, so that the right of reply could be given to the Crown
counsel. It has, in fact, never been allowed, unless evidence
was given for the prisoner, except as a personal right to the
Attorney-General or counsel representing the Attorney-General.
It was held in the case of Reg. v. Hennessy (1 Q.S.C.R. 147), in 1866,
that the conviction was vitiated by the fact that the Crown
Prosecutor was allowed to reply when no evidence had been given
for the prisoner. Section 619 of the Code lays down the rule.
It first gives the right to counsel for the Crown to open the case
to the jury before any evidence is given. It next provides for
the case where prisoners are defended by counsel, and gives
counsel for the Crown the right to address the jury a second time
if the prisoner does not intend to call evidence, otherwise he may
not do so at that stage. It is then provided that at the close of
the evidence for the prosecution the accused or his counsel may
address the jury for the purpose of opening the evidence, and
again after the whole evidence is given ; but if evidence is adduced
for the accused person, counsel for the Crown is entitled to reply.
In the case of two accused persons, if evidence is given for the
one and not for the other, counsel for the Crown may reply as to
the one for whom evidence is given, but not in respect to the
other. There is a great deal of force in the argument of the
Crown that a statement made by a prisoner may bring in new
matter, but if it is said that the right of the prisoner to have the
CRIMINAL REPORTS, 1860-1907. 403
last word does not include the right to make any additional Eex «. Walsh and
statement, I have only to reply that it is almost impossible for noting.
anyone to address a jury without making some such statement. G"ffitli C.J.
I should have been glad if I could see my way to come to the
conclusion that it is in the discretion of the Court to grant the
right of reply, but in the face of the Code I do not see how I can
come to that conclusion. I think the Judge in his discretion might
allow the case to be re-opened, and further evidence to be given
by the Crown if necessary. That question, however, does not
arise here, and the allowance of the right of reply is sufficient to
invalidate the proceedings unless a new trial can be granted.
However, as the Criminal Code makes no provision for granting
a new trial, the Court has no power to do so. On these grounds
I have come to the conclusion, I confess with regret, that the
conviction is wrong, and must be quashed.
Paul A.J. : I am of the same opinion. ^^"^ ■*■•'•
Conviction quashed.
Solicitor : Crown Solicitor.
[Full Court.]
R. V. HULL (No. 2).
[1902 S.R.Q. 53.— Note.— See Connolly v. Member (1906 S.R.Q. 125 ; 3 C.L.R.
682).]
Criminal law — Pleading — Autrefois convict — Plea under The 'i^^^-
Criminal Code, {s. 16) — Acts constituting two distinct offences. l8th^Mm-ch.
H. was indicted under s. 14 of the Criminal Code, for fraudulently procuring in r • T '
Queensland the commission in New South Wales of the offence of forging a docu- Real J.
ment purporting to be a message to be sent by electric telegraph. He pleaded — '
(1) not guilty ; and (2) as a special plea under s. 16 of the Criminal Code, that ~
he had already been convicted and punished for the acts charged against him on
a former indictment for obtaining money by false pretences. He was found guilty
on his first plea. On a Crown Case Reserved as to the sufficiency of the second
plea : Edd, that the offences charged in the indictments respectively were distinct,
and that the offence of procuring a forgery had been completed before the offence
of obtaining money by false pretences, and, therefore, that punishment for the
former offence was not barred by the punishment for the latter offence.
The applicability of s. 16 of the Criminal Code is not tested by the evidence given
to prove an offence, but by a consideration of the essential elements of the offence.
Crown Case Reserved.
404 QUEENSLAND JUSTICE OF THE PEACE.
R.D. HnLL(No. 2) rp^j^, prisoner was tried at Brisbane, before Real J. and a jury,
on February 17th, 18th, and 19th, 1902, on an indictment under
the provisions of s. 14 of the Criminal Code, charging him with
having while in Queensland, " fraudulently procured one Archi-
bald John Roy Macdonald to forge, at Sydney, in the State of
New South Wales, a document purporting to be a message to be
sent by electric telegraph, signed A. E. Hull, which act so done
by the said Archibald John Roy Macdonald was, and still is, an
offence under the Crimes Act, 1900 (New South Wales)." The
indictment contained an averment that the prosecution was
instituted against the prisoner at the request of the Government
of the State of New South Wales. The prisoner had been pre-
viously convicted for obtaining money under false pretences,
but the conviction had been quashed, as reported at p. 396,
On the quashing of bis conviction he was released from gaol,
having been there from November 13th to December 13th, 1901 .
Upon the prisoner's arraignment on the present charge, Macgregor
for the prisoner, said he desired to raise a plea of res judicata, and,
if necessary, to ask the learned judge to raise the question of the
sufficiency of the defence under that plea for the Full Court. The
learned judge decided to take any other plea that the prisoner
desired to raise in addition to the prisoner's general plea to the
indictment. Thereupon the prisoner pleaded as a second plea,
under s. 16 of the Criminal Code, " that he had already — namely,
on the 13th November, 1901, at the Criminal Sittings of the
Supreme Court, at- Brisbane — been convicted and punished for
an offence called obtaining money by false pretences, constituted
by the same act or acts upon which the Crown rely as constituting
the offence with which he is now in this indictment charged, and
the prisoner says that if he is guilty (which he does not admit)
of any act or acts constituting the offence with which he is now
charged, they are one and the same act or acts which constituted
the offence in respect "of which he has already been tried, con-
victed, and punished."
The evidence in support of the indictment before Real J. was
in substance the same as the evidence given against the prisoner
in support of the charges in respect of which he had been found
guilty, convicted, and sentenced before Cooper J. In particular,
the evidence given to prove or tending to prove that the state-
ments, alleged in the indictment for false pretences to have been
made by the prisoner, were untrue to his knowledge, and were
made for the purpose of obtaining the money, was in substance
CRIMINAL REPORTS, 1860-1907. 405
the same as the evidence relied on to prove the prisoner guilty E-". Hui.i.(No. 2)
■of procuring the forgery, and related to the acts on which the
prosecution relied as constituting the offence for which the
prisoner was tried and found guilty before Real J.
The indictment (see p. 397) on which the prisoner had been
convicted before Cooper J. and the judge's notes of the trial on that
indictment were put in. That indictment . Exhibit 15 necessarily
•contained no averment that the prosecution was instituted at
the request of the Government of New South Wales.
At the close of the evidence, there being no conflict in respect
•of the matter reUed on by the prisoner in support of the second
plea, Macgregor asked the learned judge to decide the question
raised by the plea in the prisoner's favour and discharge him, or
to reserve the question for the opinion of the Full Court. The
learned judge intimated that he would reserve the question for
the Full Court, but would take the finding of the jury on the plea
•of not guilty, and would ask them certain questions with respect
to the facts relied on in support of the second plea, stating, in
substance, the questions, and that, there being no conflict of
evidence as to those facts or any fact relied on in support of the
second plea, he would direct the jury how to answer all such
questions.
The jury found the prisoner guilty.
The learned Judge then put certain questions to them, at the
same time, with the concurrence of counsel for the Crown and for
the prisoner, directing them as to the answers to be given.
The questions and the answers so given were as follows : —
(1.) Q. : Are the documents in this indictment mentioned
and described as documents purporting to be messages
to be sent by electric telegraph, and signed A. E. Hull,
the original of the two telegrams mentioned in the
indictment Exhibit 15, and therein described as two
telegrams bearing dates 8th and 11th of April, 1901,
from Sydney, in the State of New South Wales.
A. : Yes.
(2.) Q. : Is the A. E. Hull mentioned in this indictment
and the indictment Exhibit 15 the same person. A. :
Yes.
<3.) Q. : Is the prisoner the John Franklin Munro Hull
mentioned in Exhibit 15. A. : Yes.
(4.) Q. : Was the prisoner found guilty of the offence in the
indictment Exhibit 15 stated. A. : Yes.
406 QUEENSLAND JUSTICE OP THE PEACE.
E. V. Hdll'No. 2) (5) Q_ . -^as judgment given that he (the prisoner) be con-
victed and sentenced to two years' imprisonment with
hard labour. A. : Yes.
(6.) Q. : Did the Court, before whom the prisoner was tried,
reserve a certain question for the consideration of the
Supreme Court. A. : Yes.
(7.) Q. : Was it by the said Supreme Court, after having
heard the said matter on the 13th day of December,
1901, considered that the judgment aforesaid should be
set aside, and an entry made on the record and on the
indictment, that the said John Franklin Munro Hull
ought not in the judgment of the said Court to have been
convicted of the crime in the indictment Exhibit 15
charged. A. : Yes.
(8.) Q. : Was the prisoner in custody from the 13th November
to 13th December, 1901, by reason of the conviction
and sentence. A. : Yes^
The questions of law reserved for the consideration of the
Supreme Court were : —
1. Are the trial, conviction, and subsequent proceedings in
respect of the charges in the indictment for false pre-
tences a bar to the trial, conviction, and punishment
of the prisoner in respect of the offence of which he has
been found guilty before me ?
2. Is the prisoner, by reason of the said former conviction and
sentence, entitled to be discharged from custody, not-
withstanding the verdict of the jury in this case ?
Macgregor, for the prisoner.
The questions should be answered in the affirmative. The plea
is pleaded under s. 16 of The Criminal Code. The findings of the
jury, as stated in the case, show that the evidence given on the
charge of procuring a forgery was substantially the same as the
evidence relied on to prove the charge of obtaining money by
false pretences, and it is clear that the acts constituting the
former offence were necessarily proved on the trial for the latter
offence. The question is. What does s. 16 of The Criminal Code
mean ? The plea raised under the section has been distinguished
from the plea of autrefois convict.
[Griffith C.J. : Does not " the same act " imply a unity of
time and place ? These offences are different in time and place.
There is a difference between the act and the evidence necessary
to prove the act. On this indictment it was necessary to prove
CRIMINAL EEPORTS, 1860-1907. 407
fraudulent intent, and it was proved by proof of subsequent acts, ^- "• ^""^^ (^°- ^)
but the intent itself must have preceded the commission of the
offence. Suppose a Statute of Limitations for criminal prosecu-
tions, the time would begin to run in respect of the forgery at
some moment prior to the moment when it would begin to run
in respect of the false pretences.]
Macgregor : But it is submitted that the evidence is the test
On a plea of autrefois convict the rule is stated : " The test,
whether a plea of autrefois convict is good, is whether the evidence
necessary to support the second indictment would be sufficient
to procure a legal conviction upon the first." Archbold, 21st
Edition, p. 159. By that test the plea here is a good one, and
appears to be the test actually applied by Vaughan Williams J.
on a similar plea in Hamilton v. Walker ([1892] 2 Q.B. 25). Other
cases in which the plea has been considered are B. v. Elrington
(1861, 31 L.J. M.C. 14), Wemyss v. Hopkins (1875, L.R. 10 Q.B.
378), B. V. Miles (1890, 24 Q.B.D. 423), B. v. Grimwood (1896,
60 J.P. 809), B. V. King ([1897] 1 Q.B. 214). See also 52 and 53
Vic, c. 63, s. 33. In America the question has been considered
and a rule established. Bishop, Criminal Law, 7th Edition,
Vol. I., ss. 1058-1064; Wharton, Criminal Pleading and Practice,
8th Edition, s. 490. When the quashing of a conviction goes
upon the ground of improper admission or rejection of evidence,
the quashing does not prevent the plea. B. v. O'Keefe (1894, 15
N.S.W.L.R. 1), B. V. Lee (1895, 16 N.S.W.L.R. 6).
Kingsbury, for the Crown, was not called on.
Griffith C.J. : The prisoner was accused and convicted of (Jriffith C.J.
having procured a person in New South Wales to commit an
offence against the laws of that State, which was also an offence
against the law in Queensland. The particular offence was the
forgery of a telegram. The prisoner set up as a defence that he
had already been convicted and punished for the same act. He
reUes upon s. 16 of The Criminal Code, which provides that a man
shall not be twice punished for the same act or omission. Now,
the previous conviction was for obtaining money in Queensland
by false pretences made in Queensland, the particular false pre-
tence being that the telegram — it was the same telegram — was
genuine. I think it is only necessary to look at the words " the
same act or omission," to say, that when it is alleged that acts
referred to in two indictments are the same, there is implied a
unity, at least, of time and place. In the present case, with
408 QUEENSLAND JUSTICE OF THE PEACE.
B. V. Hdll (No. 2) respect to the time of the offence, the procuring in New South
Griffith"c J. Wales was complete as soon as the law of New South Wales
had been broken. It was not until some time after that that
the prisoner did the act which constituted the other offence —
that is to say, not until he made the representation that the
telegram was genuine, and by that means obtained property.
With respect to the place also, it seems to me that there was no
unity of place between the two offences. The confusion has
apparently arisen from not distinguishing between the acts
which were the elements of the offence, and the particular evi-
dence which was adduced to prove the acts. In this case it
was necessary to prove that the prisoner procured a person to
forge a telegram, and it was necessary also to prove a fraudulent
intent. The offence was thus complete, and all that was necessary
to be proved was the state of facts existing at the time the tele-
gram was forged. In this case it happened that the fraudulent
intention was proved by subsequent acts of the prisoner, but the
time of his procuring was antecedent to the actual forgery.
On the charge of obtaining money by false pretences, it was
necessary to prove that he knew the telegram was forged. An
ingredient of the offence of obtaining money by false pretences
was his knowledge when he obtained it, and it happened that his
knowledge was proved by proving that he himself procured the
forgery. But the two charges are distinct, and relate to different
acts altogether. In the cases quoted by Mr. Macgregor about
" necessary evidence," it is clear that the words were intended
to mean " essential elements."
It could not make any difference whether the prisoner on the
first occasion was convicted on his own plea of guilty, or by
verdict after evidence. It was quite immaterial how his guilty
knowledge M-as proved. It was, in fact, proved that he himself
was the author of the forgery, and it was proved that the forged
document was made with intent to defraud by proving that he
tried to obtain money on it. But his knowledge might have been
proved in any other way ; for instance, by his own admission,
if he had made one. It is clear that the acts charged in those
two indictments are not identical, and there is no rule of law
which prevents the conviction from standing. The conviction
will be affirmed.
Cooper J. CooPEB and Real JJ. concurred.
Real J.
Conviction affirmed.
Solicitors : Alfred Down ; The Crown Solicitor.
CEIMINAL EEP0RT8, 1860-1907. 409
[In Court.]
R. V. LEWIS, Ex parte CHABAL.
11902 S.R.Q. 99.— Note.— See Commonwealth Extradition Aet (No. 12 of 1903).]
Criminal law — Extradition — Habeas corpus — French law — Vol— ^^^^'
Religation—Loi du 27 Mai, 1885— Extradition Treaty with ^'''^ September.
France— Extradition Acts, 1870 to 1895 (33 and 34 Vic, Griffith. G.J.
c. 52 ; 36 and 37 Vic, c 60 ; 58 and 59 Vic, c 33)— The
Extradition Act (Queensland) 1877 (41 Vic, No. 2).
A French subject was convicted by a competent Court in France of the crime of
■" vol." There being several previous convictions against him, he was sentenced
to " ReUgation, and further, to six months' imprisonment." He was sent to New
Caledonia, and escaped after serving the six months, but while still undergoing
" Relegation." He was arrested in Queensland and committed for extradition.
Held, on Habeas Corpus, that during the period of " Relegation " he was under-
going a term of imprisonment for an extradition crime, and that he must be
-extradited.
Motion.
This was a motion, on the return of a writ of habeas corpus ad
subjiciendum, for the discharge from custody of the prisoner,
Auguste Casimir Chabal, a French subject, then confined in
Brisbane Gaol under a warrant, signed by a Police Magistrate, in
accordance with the provisions of The Extradition Acts, 1870 to
1895 (33 and 34 Vic, c. 52 ; 36 and 37 Vic, c 60 ; 58 and 59
Vic, c 33), and The Extradition Act (Queensland), 1877 (41 Vic,
No. 2).
The prisoner had been arrested on the requisition of the French
•Consular Officer. It appeared from the official record sent by
the French authorities with the requisition for extradition, that
the prisoner had been convicted at Marseilles, in France, on
October 28th, 1892, before the Correctional Tribunal, of the
crime of theft (vol). Several previous convictions having been
recorded against him, he had been sentenced to " relegation,"
and further to six months' imprisonment " pour vol." From
this sentence he had appealed to the Court of Appeal at Aix, in
France, which Court confirmed the sentence of the Correctional
Tribunal on November 25th, 1892.
In May, 1894, he had been sent to New Caledonia, whence he had
escaped to Queensland. He had served the term of six months'
imprisonment mentioned in the sentence, but was still under-
going " relegation." The warrant of committal recited that
he had been taken before the PoHce Magistrate at Brisbane, to
410 QUEENSLAND JUSTICE OP THE PEACE.
E. V. Lewis, show cause why he should not be surrendered in pursuance of the
Ex parteGs^nA.u Extradition Acts of 1870 (33 and 34 Vic, c. 52) and 1873 (36
and 37 Vic, c. 60), and of the Extradition Treaty with France of
August 14, 1876 (Hertslet's Treaties, Vol. 14, p. 359), on the
ground of his being convicted of the commission of the crime of
theft within the French jurisdiction. It was dated the 14th
day of August, 1900.
On September 1st, 1900, a writ of habeas corpus was issued,
directing the Superintendent of Brisbane Gaol to have the body
of the prisoner, together with the day and cause of his being taken
and detained, before the Court on the 3rd day of September, 1900.
The Superintendent's return to the writ of habeas corpus set out
the warrant of committal above referred to.
By French law persons who have undergone several previous
convictions are liable on conviction for certain ofPences, of which
theft (vol) is one, to be sentenced to " Relegation "* in addition
to a term of imprisonment, under the provisions of the " Loi sur
les Recidivistes du 27 Mai, 1885," the material provisions of
which are as follows : —
Art. 1. La relegation consistera dans I'internement perpetuel,
sur le territoire des colonies ou possessions Fran9aises, des con-
damnes que la presente loi a pour objet d'eloigner de France.
Seront determines, par decrets rendus en forme de reglement
d'administration publique, les lieux dans lesquels pourra s'effectuer
la relegation, les mesures d'ordre et de surveillance auxquelles les
relegues pourront etre soumis par necessite de securite pubhque,
et les conditions dans lesquelles il sera pourvu a leur subsistance,
avec obligation de travail a defaut de moyens d' existence dument
constates.
Art. 2. La relegation ne sera prononcee que par les cours et
tribunaux ordinaries comme consequence des condamnations
encourues devant eux, a I'exclusion de toutes jurisdictions
speciales et exceptionnelles. Ces cours et tribunaux pourront
toutefois tenir compte des condamnations prononcees par les
tribunaux militaires et maritimes, en dehors de I'etat de sifege ou
de guerre, pour les crimes ou delits de droit commun specifics a la»
presente loi.
Art. 3. Les condamnations pour crimes ou delits poUtiques
* Relegation is confinement to a fixed locality. It differs from banishment
in that it involves no loss of civil or political rights, while banishment deprives
the condemned person of both. Littr^ Die. Franc, s.v. Comrare Digest, 48,
22. 4, 18.— Ed.
CRIMINAL REPORTS, 1860-1907. 411
ou pour crimes ou delits qui leur sont connexes ne seront, en ^- '^'- Lewis,
. , , 1 , . Ex parte CHiBiL,
aucun cas, comptees pour la relegation.
Art. 4. Seront relegues, les recidivistes qui dans quelque ordre
que ce soit et dans une intervalle de dix ans, non compris la
duree de toute peine subie, auront encouru les condamnations
enumerees a Tun des paragraphes suivants : —
1° Deux condamnations aux travaux forces ou a la reclusion
sans qu'il soit deroge aux dispositions des paragraphes 1 et 2 de
Tarticle 6 de la loi du 30 iVIai, 1854.
2° Une des condamnations enoncees au paragraphe precedent,
et deux condamnations, soit a I'emprisonnement pour faits qualifies
crimes, soit a plus de trois mois d'emprisonnement pour : — Vol ;
escroquerie ; abus de confiance ; outrage public a la pudeur ;
excitation habituelle des mineurs a la debauche ; vagabondage
ou mendicite, par application des articles 277 et 279 du Code
Penal.
3° Quatre condamnations, soit a I'emprisonnement pour faits
qualifies crimes, soit a plus de trois mois d'emprisonnement pour
les delits specifies au paragraphe 2 ci-dessus.
4° Sept condamnations, dont deux au moins prevues par les
deux paragraphes precedents, et les autres, soit pour vagabondage,
soit pour infraction a I'interdiction des residences signifiee par
application de I'article 19 de la presente loi, a la condition que
deux de ces autres condamnations soient a plus de trois mois
d'emprisonnement. Sont considerees comme gens sans aveu et
seront punis des peines edictees contre le vagabondage, tous
individus qui, soit qu'ils aient ou non un domicile certain ne
tirent habituellement leur subsistance que du fait de practiquer
ou faeiliter sur la voie publique I'exercise des jeux illicites, ou la
prostitution d'autrui sur la voie publique.
Art. 10. Le jugement ou I'arret prononcera la relegation en
meme temps que la peine principale ; il visera expressement les
condamnations anterieures par suite desquelles elle sera applicable.
Art. 14. Le relegue qui, a partir de I'expiration de sa peine, se
sera rendu coupable d'evasion on de tentative d'evasion, celui
qui sans autorisation sera rentre en France ou aura quitte le
territoire de relegation, celui qui aura outrepasse le temps fixe
par autorisation, sera traduit devant le tribunal correctionel
du lieu de son arrestation ou devant celui du lieu de relegation,
et apres reconnaissance de son identite, sera puni d'un emprisonne-
ment de deux ans ou plus. En cas de recidive cette peine pourra
etre portee a cinq ans. Elle sera subie sur le territoire des lieux
de relegation.
412
QUEEMSLAND JUSTICE OF THE PEACE.
B. V. Lewis,
Jlic parte Chabal.
Art. 16. Le relegue pourra, a partir de la sixieme annee de sa
liberation, introduire devant le tribunal de la localite, une demande
tendant a se faire relever de la relegation, en justifiant de sa
bonne conduite des services rendus a la colonisation et de moyens
d' existence.
Les formes et conditions de cette demande seront determinees
par le reglement d' administration publique prevu pa'r I'article
18 ci-apres.
Hart, for the prisoner.
There is no evidence that the prisoner was relegated for an
extradition crime. He was not relegated for the theft, but for
the previous convictions. He has served his six months for the
theft. Habitual crime is not an offence within the Extradition
Treaty, clause 3 (Hertslet's Treaties, Vol. 14, p. 360) of which
contains all the crimes, of which extradition can be demanded.
In any case, the sentence expires at the end of six years, at the
expiration of which time he was free to return to France.
Rutledge A.G., and Kingsbury, for the Crown :
The prisoner was convicted by a competent Court in France of
an extradition crime, and has been sentenced to a special punish-
ment for it because of his other offences, relegation being added
to his imprisonment. He has served his six months, no doubt,
but he could be free only in New Caledonia. He commits a
crime if he leaves the island. He could apply at the end of six
years for a remission of his sentence. There is no evidence that
he has done so, or that it has been granted. They cited the Loi
sur les Recidivistes de 27 Mai, 1885, clauses 1, 4 (2, 3), 10 and 16.
-Griffith C.J. Griffith C.J. : It appears from the original official record
from New Caledonia, to which I have referred, that Chabal was
convicted at Marseilles on 28th October, 1892, and was sentenced
to " relegation," and further to six months' imprisonment
" pour vol." " Vol," or theft, is an extradition offence. The
question is, whether after the expiration of the six months, he
is liable to extradition. The French " Law concerning Reci-
divistes " (Loi sur les Recidivistes) of 27th May, 1885, defines
" relegation " as the perpetual internment, in the French Colonies
or Possessions, of the convicted offenders whose expulsion from
France is the object of the law (Art. 1). The places in which
" relegation " is to have effect are to be appointed by adminis-
trative direction. It appears that New Caledonia has been so
appointed. Sentence of " relegation " can only be pronounced
CRIMINAL REPORTS, 1860-1907. 413
by an ordinary Court or tribunal, and only as a consequence of ^- "• Ij^wis,
a conviction before it (Art. 3), for certain offences and under
certain conditions ^^•hich are specified in Art. 4. Sentence of Griffith C.J.
relegation must be pronounced at the same time as the principal
punishment (peine principale) (Art. 10). The judgment must
expressly state the previous convictions by reason of which the
punishment of relegation is applicable. " Vol," as I have already
said, is an extradition offence. The first objection therefore fails.
The punishment was inflicted for the crime of theft. The fact
that the offender was liable by reason of previous convictions, to
be sentenced for the theft to " relegation " in addition to im-
prisonment does not alter the fact that the offence for which he
was sentenced was theft.
With respect to the objection that the sentence has expired,
I am of opinion that a person who has been sentenced for an
extradition crime to " relegation " within the limits of New
Caledonia is " a person convicted of an extradition crime " within
the meaning of the definition of " fugitive criminal " in s. 26 of the
Extradition Act. It is not suggested that, if the sentence had
expired, the status of a convicted person would any longer attach
to him ; but until it has expired, that status, in my opinion,
cxHitihues. The size of the place of " relegation," and the com-
parative amount of liberty there enjoj'ed, cannot, in my judgment,
affect the question.
Rehance was placed by Mr. Hart on Art. 16 of the Law of 27th
May, 1885, which provides that the convict may, at the expira-
tion of six years " from his liberation," apply to the local tribunal
to be relieved from the " relegation " under conditions to bo
prescribed by Administrative Regulations. It does not appear,
however, that any such application has been granted or even
made in this case. And under Art. 14 a relegue who without
authorisation leaves the territory of " relegation," is liable to
imprisonment for two years. I think, therefore, that the applicant
is a fugitive criminal undergoing sentence, and is liable to extra-
dition.
Prisoner remanded to custody.
Solicitor : Crown Solicitor.
[Compare Ex parte Morduit, 2 Western Australian Law Reports,
p. 6.— Ed.]
Power J,
414 QUEENSLAND JUSTICE OF THE PEACE.
[Central Court.]
CRUDGINGTON v. COONEY, Ex parte COONEY.
[1902 S.R.Q. 176.— Note.— Case foUowed in MoUoy v. HaUam, (1903 S.R.Q. 282,
284, post. See also McNamara v. Jenkins (1906 Q.W.N. 47), post.]
1902. Criminal law — Justices — Evidence — Animals suspected to have been
'^^*\iarch ^''*' stolen — Possession of skin — Proof of knowledge — Wrongful
admission of evidence, effect of — Locality — Judicial notice
taken by justices — The Criminal Code (63 Vic, No. 9, Sch. I.),
s. 446.
Upon a complaint made under s. 446 of the Criminal Code, in order to prove
possession, evidence must be given which will sufficiently establish that the defend-
ant had knowledge that the object possessed was under his control.
Dictum of Watson B. in S. v. Cohen (1858, 8 Cox C.C. 41, at p. 42), that
" the word possession imports knowledge of that which is possessed," adopted.
The wrongful admission of evidence which is in its nature damaging to the
accused, and which, considering all the evidence, must be taken to have influenced
the decision of the justices, vitiates » conviction.
Irving v. Gagliardi (1895, 6 Q.L.J. 155) distinguished.
Upon general evidence as to locality, justices may take judicial notice that the
place where an offence was alleged to have been committed is within the district
within which they exercise jurisdiction, and the absence of direct evidence to that
effect is no ground for quashing a conviction when the correctness of the fact so
recognised is not disputed.
Order nisi to quash under s. 209 of The Justices Act of 1886 (50
Vic, No. 17).
This was an appication to quash a conviction by the Police
Magistrate at Emerald, under s. 446 of the Criminal Code (63
Vic, No. 9, Sch. I.). The offence charged by the complainant
Albert Crudginton against the defendant James Cooney was that
the skin of a goat was found in the defendant's possession, which
goat was suspected on reasonable grounds to have been stolen.
The evidence showed that the complainant missed the goat on
Thursday evening, 20th February, 1902, and that on the following
Saturday morning he proceeded to the defendant's selection, about
three miles from Emerald, where he found numerous carcasses
and forty-one goat skins, amongst them one which he identified
as the skin of the missing goat. He did not see the defendant,
but had a conversation with Mrs. Cooney, who told him not to
take the skin away, as it was in her charge on her husband's
property. This conversation was given in evidence and was
objected to, but not till some time after it was given, and before
CRIMINAL REPORTS, 1860-1907. 413
the close of the proceedings. The complainant took the sldn Ckdbginton v.
away with him, and the same afternoon took out a search warrant, Ex parte Cooney.
and returned with a police constable and a Mr. James RadcUff.
A number of carcasses found near the defendant's premises were
examined, and amongst them was discovered one which had on
the complainant's registered goat collar. This collar belonged to
a goat other than that in respect of which complaint was made.
The defendant was present on that occasion, and, according to
the evidence of the constable and Radcliff , threatened to prosecute
the complainant for having taken away the skin in the morning.
The defendant gave evidence that he had left his selection on the
previous Sunday afternoon, and did not return to his selection
until about three o'clock on Saturday afterneon, having been
occupied at work as a ganger on the railway Une during that time
at a place nine miles from his selection, which he said he had not
visited during the week. He said he did not claim the skin in
question or any of the skins at his yard, and that he knew nothing
of what occurred at his house during his absence. The Magis-
trate convicted the defendant, and ordered him to pay a fine and
costs amounting to £4 5s. 6d.
An order nisi to quash the conviction, returnable at Rock-
hampton, was obtained on the following grounds : —
1. That the conviction or order was against the evidence and
the weight of evidence ;
2. That no offence was proved to have been committed by
the defendant or was disclosed in the evidence ;
3. That the conviction was erroneous in point of law ;
4. That no offence was proved to have been committed by
the defendant within the Police District of Emerald ;
5. That evidence was wrongfully admitted on the return of
the order.
An affidavit was read, by leave, which showed that the Magis-
trate said at the hearing that he was perfectly well acquainted
with the locality, and would take judicial notice of its being
within the Police District of Emerald.
Kavanagh (solicitor) moved the order absolute. It is not denied
that the skin found at the accused's selection is that of a goat
which belonged to the complainant, but the evidence shows that
the accused had left his home before the skin could have been
placed there, and did not return until after it was removed. The
accused had no control over the skin, and no power of disposail.
He never had possession or custody, for he was not aware of its
416
QUEENSLAND JUSTICE OF THE PEACE.
Ckudgingion )).
COONEY,
Ex parte Cooney
presence or even of its existence. Possession cannot exist without
knowledge of the object possessed. R. v. Sleep (1861, 30 L.J. M.C,
170), R. V. Wilmett (1848, 3 Cox CO. 281), R. v. Cohen (1858,
8 Cox C.C. 41), Roscoe's Criminal Evidence, 10th Ed., p. 813,
To constitute an offence there must be guilty knowledge. R. v.
Hill (1849, 3 Cox 533).
Evidence was wrongfully admitted, in particular, a conversation
with the defendant's wife. Objection was taken during the hear-
ing, and the evidence should have been struck out. It is the
duty of a Magistrate in his capacity as a Judge to exclude in-
admissible evidence. Shaw v. Roberts (1818, 2 Starkie 455),
R. V. Gibson (1887, 18 Q.B.D. 537).
It was not proved that the place where the offence was com-
mitted was within the jurisdiction of the Magistrate. The
locality is stated in the summons, and if it is necessary to aver
it, it is necessary to prove it. Judicial notice may be taken of
territorial jurisdiction, but not that a certain place is within a
certain territory. Taylor on Evidence, ss. 14, 17.
B. M. Lilley (solicitor) showed cause. It is not necessary to-
prove actual manual possession ; control is sufficient. The
subsequent acts and conduct of defendant furnish abundant
evidence to show that he claimed control of the skin at the time-
it was found on his selection. Upon his return he even threatened
to prosecute the complainant for removing it. Forty-one goat
skins and a number of carcases, oiie with the complainant's
registered collar on, were found near defendant's premises,
and h? neither claimed these as his property nor accounted for
their presence. From these facts a course of conduct and guilty
knowledge may be inferred. Makin v. Attorney-General for
New South Wales ([1894] A.C. 57 ) R. v. Rhodes ([1899] 1 Q.B. 77),
R. V. Ollis ([1900] 2 Q.B. 758), Taylor on Evidence, s. 122. The
Magistrate may have disbelieved the evidence of the accused that
he was absent from his selection while the skin was there. If
there is evidence both ways, the Court will not disturb the finding
of the Magistrate. Martin v. Municipality of Brisbane ([1894]
A.C. 249). If evidence has been -wrongfully admitted, the same
facts have been proved by other sufficient evidence. Irving v,
Gagliardi (1895, 6 Q.L.J. 155), Ex parte McGallum (1885, 1 W.N.
(N.S.W.) 136). The evidence of the conversation with the
wife was not objected to before its admission, and objection
cannot be taken now. Britcher v. Williams (1893, 5 Q.L.J. 39).
It is not necessary to give formal evidence of a locality with which
CEIMINAL EEPORTS, 1860-1907. 417
Justices are familiar. Simpson v. Fraser (1894, 5 Q.L.J. 89), CRUDaiNOTON u.
Ex parte Cramb (1882, 1 Q.L.J. 81). It is shown by affidavit Ex partTclomr.
that the Magistrate took judicial notice that the locality was
within his jurisdiction, and the correctness of this finding is not
disputed.
C.A.V.
March 21st. Power J. (after stating the facts) : On this ^°''^' '^•
appeal practically three grounds have been reUed upon as vitiating
the conviction. I shall first deal with the objection that the
offence was not proved to have been committed within the police
district of Emerald. The complainant's evidence showed he
hved at Emerald and that he went three miles up the Clermont
line to the defendant's selection to look for his goat, and the
defendant says he was Uving at his selection, three miles on the
west side of the Clermont Une. Though it has been held that
where no evidence was tendered a Judge was not required to
take judicial notice that a place is situated within a particular
country, Brune v. Thompson (1842, 2 Q.B. 789), Denman C.J.
was careful to observe that he laid down no general rule, but that
very general evidence might suffice. Here the Magistrate states
that he did take judicial notice of the locaUty being within his
district, and it is not contended that this decision, as a matter
of fact, is not correct, but merely that the complainant was bound
to give fuller evidence upon the subject. I think the evidence
given is quite sufficient to warrant the Magistrate in taking
judicial notice that the offence was committed within his district.
I do not say that it was incumbent upon him to do so, but having
done so, I think his position is perfectly correct. If this were not
so, on similar principles it might be contended that most of the
criminal trials in this Court were invaUd because formal proof
had not been given that the particular locality where an offence
was commited was within the State of Queensland, although
the fact was undisputed, and was perfectly well known and recog-
nised by all persons taking part in the trial. It would be obviously
absurd to endeavour to stretch a technical rule to this extent. The
next question is whether the defendant is proved to have com-
mitted an offence at all. Section 446 of The Criminal Code
provides that when certain animals, including goats, are suspected,
on reasonable grounds, to have been stolen, any person in whose
possession or custody the skin or carcass, or any part of the skin
or carcass, of the animal so suspected to have been stolen, is
found, is guilty of an offence unless he proves that he came lawfully
418
QUEENSLAND JUSTICE OF THE PEACE.
Power J.
Cbudgington v. ]jy ^ijg thing in question. The defendant's contention is that he
ExparuCooDKT. never had possession of the skin on which he is charged, and that
he had no control over it and never knew it was there. The term
" have in possession " under The Criminal Code " includes having
under control in any place whatever, whether for the use or benefit
of the person of whom the term is used or of another person
and although another person has the actual possession or custody
of the thing in question." Power to exercise control over a
given object is the criterion of possession ; but in order to exercise
such control, it is necessary that the persons possessing should
know he has control. " The word possession imports knowledge
of that which is possessed," E. v. Cohen (1858, 8 Cox C.C. 41),
per Watson B. at p. 42 — " unless the things were upon his
premises with his knowledge they were not in his possession at
aU," R. V. Willmett (1848, 3 Cox C.C. 281), in both of which
cases the offence charged was having possession of marked naval
stores. Section 446 of The Criminal Code is an embodiment of
s. 5 of The Larceny {Cattle Stealing) Act, 1853, by which it was
provided, in a charge of this nature, that the skin of an animal
reasonably suspected to have been stolen must, in order to
constitute an offence, have been proved to have been found in
the possession of the person charged with his knowledge. Under
that section the onus of proving possession with knowledge lay
upon the prosecution. The Code has omitted the words " with
his knowledge," and under its provision it is simply provided
that possession must be proved ; but I think it is still necessary to
give some proof of knowledge, for no possession could exist unless
there was knowledge of the thing possessed. I do not say that
it is necessary to prove knowledge directly, for that would be
frequently impossible. The fact that a skin was found on a
man's premises would be the strongest presumptive evidence
that he knew it was there, if he had had an opportunity of seeing
it, or if he had been on the premises while it was there. It is a
question that must depend to a very great extent on the weight
of the evidence. The defendant says he was away during the
whole time that the skin could have been on his premises — from
Thursday to Saturday — and that he never knew it was there.
I do not think it was incumbent upon the Magistrate to accept
his story in view of his conduct when he did return, for he cer-
tainly threatened to prosecute the complainant for taking the
skin away, which would lead to the assumption that he claimed
possession of the skin, and that even though he was away he
CRIMINAL REPORTS, 1860-1907. 419
had given some person authority to put the skin on his premises, tiRTOoiNOTON v.
and this, though it was stolen. This is further strengthened by Ex parte Coomky.
the fact that the carcass of a goat, with the defendant's collar on, p j
was found in his yard, together with forty-one skins of goats,
none of which he claimed. He does not seem to have explained
how they got there, and unless he did I think his mere disclaimer
would not be sufficient to discharge him from being fixed with
possession and knowledge of those skins. If he gave an authority
to others to procure those skins for him, I do not think he can be
heard to say that he did not know his orders had been acted upon
with respect to the skin on which he is charged. In that case he
knew beforehand what was about to be done, and immediately
it was done he had power of control and disposal of the skin in
question before it was re-taken, if he had chosen to exercise it.
It only took him a Uttle over an hour to return from his work on
Saturday afternoon, and he was therefore within easy access of
his selection if he wished to visit it. On the whole, I think it
was open to the Magistrate to find he knowingly had possession
of the skin on which he is charged, having regard to all the evi-
dence given. But it is clear that inadmissible evidence was re-
ceived, and the character of this evidence was such as to be Ukely
to affect the decision of the Magistrate. It is the duty of the
presiding Magistrate to see that no improper evidence is admitted.
B. V. Gibson (1887, 18 Q.B.D. 537). In this case objection
was taken during the hearing, though not at the time the evidence
was tendered, and the proper course, in my opinion, for the
Magistrate to have taken, was to have struck the evidence out.
The prosecutor said that when he went to the defendant's selec-
tion and took the skin the defendant's wife told him not to take
the skin away as it did not belong to him. He asked her if she
claimed the skin and she said, " No ; but it is in my charge on
my husband's property." I think it can only be inferred from
that conversation that she was in charge of that skin on behalf
of her husband, and that it was consequently in his possession.
The evidence was very damaging, and renders this case quite
distinguishable from Irving v. Gagliardi (1895, 6 Q.L.J. 155), for
there the majority of the Court was of opinion that the evidence
though wrongfully admitted, did not influence the decision,
and there being other sufficient evidence, the conviction would
not be quashed. In this case there was no great weight of evidence
on one side or the other, and I have come to the conclusion that, as
a matter of fact, the evidence wrongly admitted di,d influence the
420 QUEENSLAND JUSTICE OF THE PEACE.
Crtogington v. decision. [See remarks of Griffith C.J. in Irving v. Gagliardi at
Ex pJucl'oiiEY. p. 161 of 6 Q.L.J.] On this last ground I think that the convic-
Power J,
Real J.
tion must be quashed, but I shall make no order as to costs.
Conviction quashed without costs.
Sohcitors : Swanvnck cfc Kavanagh ; B. M. Lilley.
[Full Cotjet.]
R. V. THE JUSTICES AT DALBY, Ex parte O'KEEFE.
[1902 S.R.Q. 191 ; Q.W.N. 41.]
1902. Criminal law — Prohibition or quashing order — Complaint not dis-
6th May. closing an offence — Offence under repealed section — The
Griffith G.J. Brands Act of 1872 (35 Vic, No. 4), s. 27 — The Criminal
Code (63 Vic, No. 9, Sch. 1), s. 447.
K. was charged, upon complaint before justices, with having unlawfully and
wilfully branded with his brand two heifers, the property of the complainant. He
set up the defence of a bona fide claim of right. The justices convicted him. The
acts charged constituted an offence under s. 27 of The Brands Act of 1872. That
section was repealed by the Criminal Code, and the section which is substituted
for it in the Criminal Code is not identical with it.
Held, that the defendant had been convicted of an offence not knowa to I he
law, and that the conviction was wrong.
Held also, that, as the justices had no jurisdiction to convict, prohibitio i was-
the proper remedy.
The prosecutor having failed to establish his defence of a bona fide claim of right
before the justices, the order for a prohibition was made absolute without costs.
Order Nisi for a Prohibition.
A complaint was laid by Thomas Mclnnerney against Edmond
O'Keefe, charging him with unlawfully and wilfully branding two
heifers, the property of the complainant. The complaint was
heard at the Court of Petty Sessions at Dalby, on 10th February,
1902. O'Keefe set up the defence of a bona fide claim of right
to brand the heifers. He was convicted, and fined £1 and £6 15s.
and 9d. costs.
On the 11th April, 1902, an order nisi was obtained before
Griffith C.J., calling on Mclnnerney and the Justices of the Peace
who heard the complaint, to show cause why a writ of prohibition
should not issue, prohibiting any further proceeding under the
CRIMINAL REPORTS, 1860-1907. 421
conviction, on the grounds (1) that the said complaint disclosed B.ti. The Justices
no offence ; (2) that the jurisdiction of the Justices was oustetl ex parte O'Kk^e
by a bona fide claim of right.
Sydes moved the order absolute.
Macgregor, for Mclnnerney, raised the preliminary objection,
that prohibition was not the proper remedy. It should have
been by way of quashing order.
[Gbipfith C.J. : The first ground is that there has been no
breach of any law. Does not that go to the jurisdiction ?]
On the second ground, Quashing Order is the remedy.
Gbiffith C.J. : Prohibition is the proper remedy ; at any rate
it is now too late to apply for a Quashing Order.
Macgregor : The prosecutor was charged under The Brands Act
■of 1872, s. 27, which was repealed by The Criminal Code, but
the offence, which formerly was constituted under that section,
is now contained in s. 447 of The Criminal Code. The word
" wilfuUy " in the complaint means " knowingly and intention-
ally." A form under s. 447 of the Code is given in the Schedule
to the Criminal Practice Rules, No. 271. But it is not necessary
that the form should be followed ; similar forms may be used,
and the words in the complaint " did unlawfully and wilfully
brand . . . the property of . . ." is viide enough to
bring the offence under s. 447.
[Real J. : It is quite possible that the evidence which would
support a conviction under the repealed Act might not be
sufficient for the purposes of a conviction under the Code.]
Griffith C.J. : Is the offence which was charged against the
prosecutor an offence against the present law.? Is it an offence
under s. 447 of the Code ?
Macgregor : 1 submit that it is. I cannot put the argument
any higher than that the offence under The Brands Act, s. 27,
and s. 477 of the Code are the same.
Griffith C.J. : The application is for a Prohibition on the Griffith C.J.
ground that the act of which the prosecutor has been found
guilty was not an offence known to the law. There is no answer
to that. It was not an offence. Although the Justices have juris-
diction to convict in some cases, they cannot convict of that
which is not an offence. As to costs, I see no reason why the
422
QUEENSLAND JUSTICE OF THE PEACE.
B.u. The Justices costs should be granted to the applicant on what is after all only
a*technical point, the merits of the case having been found by the
Justices against him. The order nisi for the grant of a writ of
Prohibition will be made absolute, but no costs will be allowed.
AT DaLBY.
Griffith C.J.
Eeal J. Real J. concurred.
Order absolute, without costs.
Solicitors : Wilson <fe Hemming, for Rowlands, Dalby ; Pace,
for Vowles, Dalby.
1902.
20th August.
Power J.
[Central Court.]
R. V. PATRICK AND JAMES KENNIFF.
[1902 S.R.Q. 239.]
Criminal law — Trial — Special jury — Application by the Crown —
Objection by the accused — Exceptional circumstances — Evidence
—Matter of right— The Jury Act of 1867 (31 Vic, No. 34),
ss. 24, 26.
Where a true bill has been found against accused persons who have been com-
mitted for trial, an order for a special jury may be granted on the appUcation of
the Crown, when the grounds on which the application is made are verified on
affidavit made on behalf of the Crown Solicitor, and it is not necessary that further
evidence should be given to show that exceptional circumstances exist.
Semhle, that the application by the Crown may be made ex parte, and will he
granted as a matter of right.
Order Nisi for a Special Jury.
On the 11th August, 1902, Patrick and James Kenniff were
committed to take their trial at the Criminal Sittings of the
Supreme Court, to be held at Rockhampton on 25th August,
1902, on a charge of the wilful murder of Albert Christian Dahlke
and George Doyle.
On the 15th August, upon application made on behalf of the
Crown, supported by an affidavit that the Crown desired that
the trial should be had before a special jury of twelve men, an
order nisi was granted at Rockhampton, returnable on the 18th
then current, calling upon the accused to show cause why an
order should not be made for the trial of the issues raised before
a special jury, and why a jury precept should not issue accord-
ingly, upon the following grounds : —
CEIMINAL REPORTS, 1860-1907. 423
1. The complicated nature of the evidence for the prosecu- ^- "■ Patrick and
,• James Kenniff.
2. The large number of important exhibits.
3. The technical nature of the evidence of medical experts
to be called for the prosecution.
4. The mass of circumstantial evidence to be considered.
Upon the return of the order nisi, which was adjourned from the
18th to the 20th August, a further affidavit was filed on behalf of
the Crown, which stated that a true bill had been found against
both the accused ; that in the opinion of the Crown Solicitor on the
material contained in the depositions, the case was one essentially
fit for trial by a special jury ; and that the evidence for the
prosecution was of a complicated nature, and comprised a number
of important exhibits, and was largely of a technical and cir-
cumstantial nature.
Ryan, for the accused : The words constituting the Crown
SoHcitor's expression of opinion on the depositions should be
struck out. It is for the Court to draw deductions from evidence
brought before it.
Power J. : I wiU not strike them out.
Boland (solicitor) for the Crown, moved the order absolute, and
asked that a precept be issued for the summoning of not less than
seventy-two special jurors. Under s. 26 of The Jury Act of 1867*,
the order for a special jury is a matter of right when asked for
by the Crown. Notice by the Crown to the accused is not neces-
sary. The only stipulation that notice shall be given is where
the application is made by the accused. An order for a special
* 31 Vic, No. 34, s. 26. — Upon all inquests to be taken before the Supreme
Court or at any Assizes or before any District Court or Court of General Sessions
of the Peace wherein the Queen is a party howsoever it be it shall be lawful for
the Supreme Court on application to be made to such Court on behalf of Her
Majesty or by or on behalf of any defendant or person accused of any indictable
ofEeuce whether any indictment shall have been found or not to order that the
trial of any issues joined upon any indictment which has been or which shall be
found against the person to be named in such order at the said Court or at any
Assizes or other Court as hereinbefore mentioned shall be tried by a special jury
of twelve men and in that case the proper officer shall issue a jury precept accord-
ingly. Provided that any defendant or other person accused shall serve a notice
of such application upon the Attorney-General or other prosecutor at least four
clear days before the time of his making the same.
The Victorian Juries Act, 1890 (54 Vic, No. 1104), s. 39, is as follows :— On all
criminal inquests it shall be lawful for the Court upon application on behalf of Her
Majesty or of any party accused of any indictable ofEemce and whether any indict-
ment have been exhibited or not to order that the inquest shall be tried by a
special jury of twelve men.
424 QUEENSLAND JUSTICE OF THE PEACE.
S,.v. Patrick AND j^j-y ■^^ra,s made ex parte in R. v. Armstrong (1899, 5 A.L.R. (C.N.)
^"^ ' 69), in Victoria, under the Juries Act, 1890, s. 7 of which is, in
effect, the same as s. 26 of the Queensland Act.
Ryan, for the accused, showed cause. Under s. 20 of The Jury
Act of 1867, notice must be left with each juror, or at his last
known place of abode, at least six days before his attendance
is required. The accused are committed for the 25th instant,
and it would be impossible to give the jurors six days' notice.
[Power J. : That is a matter for the jurors to consider.]
By s. 24 of The Jury Act of 1867, it is enacted that criminal
trials shall ordinarily be held before a common jury. Under s. 26,
the Court may, in its discretion, grant a special jury, but special
circumstances must be shown before an order wiU be made. The
onus of proving such circumstances rests with the appUcant,
and evidence must be furnished that wiU enable the Court to
determine whether its discretion may be properly exercised.
In certain cases the circumstances are in themselves exceptional,
and constitute, prima facie, a ground for trial by a special jury —
for instance, the trial of bank directors charged with issuing false
balance sheets [R. v. Hart and Others (1898, Sept. 26th, Real J.)],
or a case in which there had been an abortive trial before a
common jury [R. v. Lancefield (1876, Sept. 7th, Full Court)].
Here the grounds alleged are such as may occur in any case,
and are not sufficient unless evidence is furnished as to the
nature of the circumstances. There is no evidence that there
are exceptional circumstances beyond the Crown SoUcitor's
opinion.
[Power J. : Is not that sufficient ? A public official makes
that assertion.]
If it is possible to rely solely on the statement of the Crown
SoUcitor, any case in which he chose to file an affidavit could be
tried by special jury.
[Power J. : The affidavit shows that the Crown SoUcitor says
it is a case essentially fitted for trial by special jury.]
It is the function of the Court to say that.
[Power J. : I do not think so. Otherwise I would practically
have to form an opinion on the case now. The Crown Solicitor
is a high official having knowledge of the matter.]
CRIMINAL REP0ET8, 1860-1907. 425
The ordinary procedure should not be departed from, especially ^j "■ ^^'^^°\
as the prisoners are to be arraigned on the gravest charge.
[Power J. : When is s. 26 applicable ?]
Only in exceptional circumstances.
[Power J. : The Crown state that the circumstances are
exceptional.]
They have furnished no evidence in support of that statement.
They simply say that there is a mass of circumstantial evidence,
[Power J. : I do not see how they could go beyond that.]
Then the Crown can get a special jury on any case. This
would furnish a dangerous precedent.
[Power J. : You do not suggest that the Crown would be so
corrupt as to ask for a special jury when there was no necessity
for it ?]
No ; but it would leave a great power in the hands of the
Crown — more than was intended.
Power J. : The power is not likely to be abused, seeing that Power J.
it has hardly ever been availed of for the last twenty-five years.
The only case I can remember is that of JR. v. Lancefield (1876,
Sept. 7th, Full Court). Each case depends upon its own particu-
lar circumstances, and it is unnecessary to talk of a precedent, for
•criminal cases are, in their circumstances, very seldom alike.
I do know that in some cases the common jurors are not capable
of judging. Section 26 makes no provision for notice to the
accused. That seems to imply that this application may be
made ex parte, and is therefore to be granted as a matter of right.
I shall make the order absolute, and direct the issue of a precept
to summon seventy-two special jurors.
Solicitors : Rees R. & Sydney Jones, for the Crown Solicitor ;
J. Pattison, for McOrath <fc O'Neill.
E.A.D.
426 QUEENSLAND JUSTICE OF THE PEACE.
[Full Couet.]
SHEEHAN V. GALLAGHER, Ex parte SHEEHAN.
[1902 S.R.Q. 319.— Note.— See MacDonald v. Beare (1 C.L.R. 513) ; Brown v,
McCarthy, Ex parte McCarthy (5 Q.J.P.R. 167).]
1902. Criminal law — Gaming — Special warrant under 14 Vic, No. 9 —
308ft, 3isi Octooer Warrant not addressed to anyone — Informality — Evidence of
Griffith G.J. keeping a comm,on gaming house — Act to amend the law
j^J^^j ' concerning games and wagers (14 Vic, No. 9), ss, 1, 4,
Schedule Al.
On the information on o .th of the complainant, a police constable, that the-
defendant's premises were kept and used as a common gaming house, a special
warrant was issued under the Act 14 Vic, No. 9. T_e warrant was otherwise in the
form provided by the first Schedule to the Act, but was not addressed to anyone.
The complainant entered the defendant's premises in pursuance of the warrant,,
searched for and found instruments of unlawful gaming, and arrested the defend-
ant, who was brought before Justices and convicted of keeping a common gaming
house. On order nisi to quash the conviction :
Held, that the warrant was informal and perhaps invalid, but that the only
essential preliminaries to the prosecution were the information on oath and the
exercise of the Justices' discretion in granting the warrant, and, as these had been
complied with and there was evidence to support the conviction, the order was
discharged.
Sx parte Gaynor (1860, Wilkinson, Queensland Magistrate, 1879 Ed., Pt. III.,
p. 39) distinguished.
Oedeb Nisi to Quash a Conviction.
In April, 1902, upon complaint made on oath by Sheehan, a
constable of police, that there was reason to suspect that certain
premises in Gill Street, Charters Towers, occupied by Patrick
Gallagher, were kept or used as a common gaming house, and
that it was commonly reported and believed by Sheehan so to be,
a special warrant was issued under s. 1 of the Act of Council
passed in the fourteenth year of her late Majesty Queen Victoria,
intituled " An Act to amend the law concerning games and
wagers," authorising entry into and search of such premises
for the purpose of arresting and bringing before the Justices the
keeper of the house and the persons there haunting, resorting, and
playing. The warrant was in the form prescribed by the First
Schedule to the Act, but the blank in the statutory form after
the word " To " was not filled up. In pursuance of the warrant
Sheehan, with other constables of police, entered and searched
the premises, and arrested Gallagher, who was charged before
CEIMINAL REPORTS, 1860-1907. 427
the Justices at Charters Towers on 18th August, 1902, with Shbehanv.
, . , , o ' Gallagher,
being tne keeper ot a cominon gammg house. From the evidence EapajtcSHEEHAK
given at the hearing of this charge, it appeared that the premises
were occupied by Gallagher ostensibly as a tobacconist's shop ;
that the constables went there about 11.30 p.m. and found the
front door of the shop shut, and, having affected an entrance,
found, in the rear of the shop, three compartments, closed by
shut and locked doors, guarded by a watchman and opened only
on signal ; beyond the third compartment there was a large room
fitted with a " pitch " for playing a game known as " two-up."
This game was played with two pennies, the reverse sides of which
were painted white. These coins were thrown up in the air
and allowed to fall into the " pitch," round which those watching
or participating in the game were seated on stools or forms.
Those playing the game betted on fall of the coins by wagering
whether the two coins would fall with the obverse side or the
reverse side uppermost. When the* police entered this room
they found between thirty or forty persons there, and some
money was found lying on the " pitch." The premises were
searched, and several dice, a dice box, and some playing cards, and
betting books and cards were found. It was amply established
by the evidence that the place had been used for the purpose of
playing " two-up," and that several of the persons present had
been betting on the game, and money had changed hands in
the settlement of the bets ; but no evidence was given to prove
that Gallagher had taken part in the game, or had betted upon
it, or that he had charged for admission or made a general col-
lection. It was proved, however, that he had at different times
during the evening collected money from some of those present,
but no evidence was given as to the amount so collected or the
purpose for which it was given. The Justices convicted him,
and ordered him to pay a fine of £70, or in default of payment,
to suffer three months' imprisonment.
On 6th September, 1902, the defendant obtained from Chubb J.
an order nisi to quash the conviction, on the following grounds :
(1) That the whole proceedings were void in that the special
warrant upon which they were founded was invalid.
(2) That the evidence of the finding of gaming implements
was wrongly admitted, such evidence only being ad-
missible under s. 4 of the Act, where entry had been
made under a good warrant.
(3) That there was no evidence to support the conviction.
428 QUEENSLAND JUSTICE OF THE PEACE.
Sheehan v. The order nisi was made returnable before the October Sittings
Gallaghee, . ,. „
JBa; parte Sheehan ot the ±ull Court.
Stumm and Hobbs moved the order absolute. The first ground
on which the order nisi was granted was not taken in the PoUce
Court, but we are entitled to raise it now. The proceedings
were taken under the Act 14 Vic, No. 9, and must be strictly
in conformity with that Act. Section 1 provides that " the
owner or keeper of the said gaming house . . . shall be
liable on conviction to a penalty . . . ." The words,
" the said gaming house," refer to the antecedent " premises
or place which he shaU. have so entered," and the collocation
means a gaming house which has been entered under a warrant
— i.e., a valid warrant. The warrant was not addressed to
anybody, and is therefore bad. All the proceedings were based
on the warrant, and as the warrant is bad, no subsequent pro-
ceedings can stand, and the conviction should be quashed. In
Ex parte Oaynor (1860, Wilkinson, Queensland Magistrate,
1879 Ed., Pt. III., p. 39), it was held that a person cannot be
convicted summarily of being in a gaming house under this
section, if that house has not been entered under a warrant
granted as provided for by the Act. In Ex parte Spratt (1863,
2 S.C.R. (N.S.W.) L. 254), the same principle was applied. A
warrant can only be executed by the person to whom it is
addressed. The Queen v. Scotton (1844, 5 Q.B. 493), Freegard v.
Barnes & Barton (1852, 7 Ex. 827).
(2) The second ground also has reference to the vaHdity of the
warrant. The finding of the instruments of gaming under a valid
warrant is, prima facie, evidence that the premises were used as a
common gaming house (vide s. 4), but inasmuch as the warrant
is bad, the same weight cannot be given to such evidence.
[Griffith C.J. : The evidence was admissible apart from the
statute. It is only a question of weight.]
(3) There is no evidence to support the conviction. The game
being played, " two-up," was not unlawful. Gfross v. Francis
(1889, August 6th, Full Court, Queensland), Watson v. Martin
(1864, 34 L.J.M.C. 50). Section 4 of 14 Vic, No. 9, and s. 23 of
The Suppression of Gambling Act of 1895, are not applicable, for
the police had no proper warrant to authorise their entrance.
The place was not a common gaming house, for there was no
evidence that it was kept for gain, or for the plajdng of any game
CRIMINAL REPORTS, 1860-1907. 429
of the nature of those mentioned in The Criminal Code, s. 232*. Sheehan v.
Gallagheb,
Stephens Digest of Criminal Law; Jenks v. Turpin (1884, 13 ExparteSBSEsm
Q.B.D. 505, at pp. 513, 516, 525, 530). No gain accrues to the
defendant from the betting.
[Real J. : He kept a tobacconist's shop, and most Ukely
reaped indirect gain.]
That is not sufficient, or the case of Powell v. The Kempton
Park Racecourse Co. ([1899] A.C. 143) would have been otherwise
decided.
[Real J. : There is evidence that he collected money. Is
that not prima facie evidence that it was paid for the privilege
of playing ?]
It might have been paid for any purpose, but no general
charge was made and no admission fee paid ; and the evidence
negatives that the payments were made in connection with the
game, and show that any person could come and play without
any payment to the defendant.
[Geiffith C.J. referred to The King v. Rogier & Humphrey
(1823, 1 B. & C. 272 ; 25 B.R. 393) and The King v. John Liston
(1793, 5 T.R. 338).]
Rutledge A.G. and O'Sullivan showed cause.. The warrant is
valid. There is nothing in the Schedule that requires the warrant
to be addressed to any particular person. The form shows that
it could be addressed to a class, and in this case it operates as a
power of attorney to any constable. It is not necessary to prove
that the game played was unlawful. Jenks v. Turpin (1884,
13 Q.B.D. 505, at pp. 513, 516, 525, 530). Bets were made,
and money paid. But if the warrant is bad the conviction should
still be upheld. The contention of the defendant that entry
under a legal warrant is a condition precedent to a prosecution
under s. 1 of the Act is a forced reading of that section. The
ordinary reading would make the words " the said gaming
house " refer to the antecedent " house " only for identity.
The evidence is sufficient to support the conviction.
C.A.V.
November 1.
The judgment of the Court was delivered by
* 63 Vic, No. 9, Sch. 1, s. 232. Vide, 14 Vic, No. 9, s. 2.
430 QUEENSLAND JUSTICE OP THE PEACE.
Sheehan v. Griffith C.J.: The defendant was convicted of being the keeper
:Expart^SwEk\N of a common gaming house upon a complaint in which the house
. is stated to have been entered under the authority of a special
warrant. The conviction is objected to, substantially, on two
grounds : Firstly, that the warrant, which in point of fact
existed, is invalid in point of law, and, therefore, should be
regarded as non-existent ; and secondly, that there was no
evidence to show that the defendant was the keeper of a common
gaming house. With respect to the merits of the case it was
proved by abundant evidence that the defendant was the occupier
of the house in question, in which he carried on the business of a
tobacconist, and that, in conjunction with that business, the
business of a gaming house was carried on. A number of persons
resorted to the place, which was carefully guarded by three
doors, a secret signal, and a watchman. It was shown, also, that
defendant went round collecting money from the gamesters. It is
said that that might have been for any purpose, but the Justices
could reasonably conclude what the purpose was. There was,
therefore, sufficient evidence before the Justices to justify them
in coming to the conclusion, in the absence of any evidence to
the contrary, that the defendant was the keeper of the house,
and also that he kept it for gain, if it was necessary to prove that
fact. We think that any advantage, direct or indirect, which
a man may hope to obtain from keeping such a house — for in-
stance, by increasing the number of his customers in another
business — is " gain " within the meaning of s. 232 of The Criminal
Code. The other objection is a purely technical one, and arises
on the construction of the Act 14 Vic, No. 9, s. 1. That Act
provides that upon complaint on oath that there is reason to
suspect any house to be kept or used as a common gaming house,
and that it is commonly reported or believed by the complainant
so to be, a Justice may issue a warrant to a constable to enter
the house and search it, and take into custody any persons he
may find there, and seize all moneys and instruments found
on the premises ; and goes on to provide that the owner or
keeper " of the said gaming house " shall be hable on conviction
to a penalty. It is contended that the words " the said gaming
house " must mean the house which has been suspected and
with respect to which a warrant has been issued and executed,
and that, consequently, the only person liable to conviction as
owner or keeper is the owner or keeper of a house which, first of
a.11, has been suspected ; secondly, in respect of which a vaUd
CRIMINAL EEPORTS, 1860-1907. 431
-warrant has been issued ; and thirdly, in respect of which the gallaghek
-warrant has been executed. Reliance is placed on Ex parte Ex parte Sh-e^uan
Gaynor (I860, Wilkinson, Queensland Magistrate, 1879 Ed., GriffitlTc J
Pt. III., p. 39), a New South Wales case decided in 1860. But
there is a difference between that case and the present. In
Ex parte Gaynor (1860, Wilkinson, Queensland Magistrate,
1879 Ed., Pt. III., p. 39) the charge was under the concluding
paragraph of the section of " being a person found in such house."
The term " found " manifestly imports finding in the course
of the execution of a warrant. No complaint, as used in that
paragraph, had been made in that case, and no warrant had been
issued. It does not follow that if a complaint had been laid
and a warrant issued, but not executed, that the owner or keeper
would not be liable. It is clear from a comparison of ss. 3 and 11
that the offence of keeping a common gaming house was recog-
nised by the Legislature as one which might be prosecuted on
summary proceedings before Justices as well as on indictment.
In this case the Justice not only exercised his discretion, but he
issued a warrant. The warrant is informal, perhaps invalid
altogether, and possibly might not protect the constable in an
action of trespass ; but it does not follow that the whole proceed-
ings are invaUd. As the Act indicates that the keeping of a
common gaming house is an offence punishable on summary
conviction, we do not think the essential preliminaries of the
prosecution are more than the laying of the information and the
exercise of the Justices' discretion. The recital in the complaint
of the entry of the house under the warrant was not necessary,
and was mere surplusage. Had the attention of the Justices been
directed to the real point as we decide it, it would have been their
duty to amend the complaint by omitting this recital. The order
nisi -will be discharged, -wdth costs.
Solicitor for the Crown : C. Powers, Crown Solicitor.
432
QUEENSLAND JUSTICE OF THE PEACE.
1902.
HGth August.
Poioer J.
[In Chambers.]
R. V. PATRICK AND JAMES KEKNIPF.
[1902 Q.W.N. 71.]
Criminal law — Practice — Prison — Visit to convicted prisoner by
solicitor for prisoners under committal — Presence of official —
The Prisons Act, 1890 (54 Vic, No. 17) — Bules and Regulations
relating to Prisons {Ist June, 1892), No. 272.
Special permission was granted to the solicitor for two prisoners
under committal to take their trial, to interview a prisoner
undergoing a sentence in Rockhampton gaol. Prison Regulation
No. 272 provides that " an of&cer shall be present at every visit,
and observe all that may pass . . . ." The Superintendent
of the gaol stated that, except under special direction, an officer
was required to both hear and see all that transpired at an inter-
view with a convicted prisoner.
McGrath (sohcitor), for the prisoners under committal, stated
that it was necessary for the defence of his clients that he should
have an opportunity of privately conversing with the prisoner.
He referred to R. v. Minnis (1 Q.L.J. 56), and asked that an
interview might be had in the sight but out of the hearing of the
Superintendent or his officers.
Power J. : I think it is only proper that I should give the
direction requested. Otherwise a solicitor might be unable to-
prepare a defence through the difficulty of obtaining the evidence
of a material witness. The Superintendent offering no objection,
I direct that the interview take place within his sight, but out of
his hearing.
Sohcitors : Morris & Fletcher ; McGrath <fc O'Neill.
1902.
26th August.
Power J.
[Rockhampton Criminal Sittings.]
R. V. PATRICK AND JAMES KENNIFF (No. 2).
[19 2 Q.W.N. 76.— Note.— See R. v. Grimes (7 Q.L.J. N.C. 109), ante p. 336.]
Criminal law — Practice — Trial — Adjournment — Affidavit as to facts
— Names of witnesses — Solicitor's statement.
When an application for an adjournment of a trial was made
in order to obtain further time to secure the production of witnesses
CRIMINAL REPORTS, 1860-1907.
who are relied upon to prove an alibi in favour of the accused,
the names of the witnesses were furnished to the Court and to the
Crown as a proof of good faith, though at the desire of the accused
they were not divulged.
Where an affidavit made by the solicitor for the accused set
forth : (1) that evidence could be obtained of an alibi which was
essential to the defence of the accused ; (2) that owing to the
limitation of time, and the distance and condition of the part of
the country in which the witnesses resided, their attendance
at the trial, could not be procured though a subpoena had been
issued and despatched for service upon them ; (3) that if an
adjournment was granted there was no doubt that the witnesses
would be in readiness ; and a further affidavit was made giving
the names of the witnesses proposed to be called :
Held, that an adjournment of the trial must be granted, and
that the solicitor's statement was regarded as equivalent to
an undertaking to produce at the trial the witnesses whose names
were given, and trial adjourned to the Brisbane Criminal Sittings
on 3rd November, 1902.
433
B V. Patrick and
James Kbnniff
(No. 2).
Crown Prosecutor : Kingsbury.
McGraih & O'Neill.
Solicitors : Morris <b Fletcher ,
Power J.
[Criminal Sittings.]
R. V. McDERMOTT.
[1902 Q.W.N. 91.]
Criminal law — Practice — Person committed for sentence pleading ^902.
not guilty — Foreigner — Plea of not guilty ordered to be entered j,nh November.
—The Justices Act of 1886 (50 Vic, No. 17), s. 113— The onffiihCJ.
Criminal Code (63 Vic, No. 9, Sch. I.), s. 600. '^^
Trial.
M., a Dane, was charged before Justices with assault. He
admitted his guilt, and having signed the statement provided by
s. 113 of The Justices Act of 1886, was coiumitted for sentence
under that section. On his arraignment at the Criminal Sittings
of the Supreme Court he pleaded not guilty, and stated that his
admission in the proceedings before the Justices had been given
in ignorance of the charge against him.
cc
434
QUEENSLAND JUSTICE OP THE PEACE.
B. 1;. McDebmott. Griffith C.J. : The accused is a foreigner, and the laws of the
Griffith C.J. countries of Europe vary much on the subject of committals.
I order a plea of not guilty to be entered under s. 600 of The
Criminal Code.
Solicitor : T. B. Hunter.
1902.
2nd, 3rd, 10th
December.
Griffith C.J.
Cooper J.
Chuhh J.
Real J.
[Full Couet.J
R. V. PATRICK KENNIFF AND JAMES KENNIFF.
[1903 S.B.Q. 17.— Note.— See R. v. Ryan (1906 S.R.Q. 15, post).]
Criminal law — Murder—Accused jointly indicted — Evidence of
death, — Evidence of concerted action.
The questions what is sufficient evidence of the corpus delicti in a case of murder,
and what is sufficient evidence of concerted action, considered.
P.K. and J.K., jointly charged with the wilful murder of D., were convicted and
sentenced to death. On a Crown Case Reserved, as to the existence of evidence
proper to go to a jury, of the death of D., and of the concerted action of the
prisoners :
Held, per Curiam, that there was evidence of the death of D.
And held by Griffith C.J., Cooper and Chubb JJ. (Real J. dissenting) that there
was evidence of concerted action.
Ceown Case Reserved.
The prisoners were charged with wilful murder, and were tried at
the November Criminal Sittings, at Brisbane, by the Chief Justice
and a special jury of twelve men. They were found guilty and
sentenced to death on November 13th, the execution being
respited pending the decision of certain points reserved for the
opinion of the Court.
The following was the case stated by the learned Chief Justice : —
The prisoners were jointly indicted for the wilful murder of
Albert Christian Dahlke and George Doyle at Lethbridge's Pocket
on 30th March, 1902. Before the close of the evidence for the
prosecution I required the Counsel for the Crown to elect on which
of the charges he would proceed, whereupon he elected to proceed
upon the charge respecting Doyle.
There was evidence to the following effect : —
Lethbridge's Pocket, the scene of the alleged crime, is a small
deep circular valley on the northern side of the Carnarvon Range,
which separates the waters of the Maranoa and Warrego Rivers
CRIMINAL REPORTS, 1860-1907.
435
■from the waters of the Comet River. It is from two or three miles
in length by a mile and a-half or two miles in breadth, its longest
diameter running about north-west and south-east. Through the
valley runs a creek, which is one of the heads of Meteor Creek, a
branch of the Comet River, and which in March had water in it in
some places. The valley is surrounded on all sides by high steep
hills, with one narrow outlet. A track leads into it over the hills
on its south-western side, and another track leads out of it along
the creek through a narrow gorge two or three chains in width.
The nearest occupied dwelling, which is on the southern side of
the range, is distant about twenty miles.
The date of the alleged murder, 30th March, was Easter Sunday.
Dahlke was manager of Carnarvon Station, situated on the southern
slopes of Carnarvon Range. Doyle was a police constable in
charge of the Upper Warrego Police Station, which is situated a few
miles to the eastward of Carnarvon Head Station, and also on that
southern slope.
On 21st March a warrant was issued for the arrest of both
prisoners on a charge of horse stealing, and was placed in the hands
of the Inspector of Police in charge of the District in which Doyle
was stationed, for execution.
The poUce force at the Upper Warrego Police Station consisted
of Constable Doyle and Constable Stephen Millard, with Sam
Johnson an aboriginal tracker.
On Thursday, 27th March, Dahlke arrived at the Police Station,
and on the following morning (Good Friday, 28th) he, accom-
panied by Doyle and Sam Johnson, went to a neighbouring
station called Mount Moffatt, where they stayed over night.
Early on the next morning, Saturday, the 29th, they went towards
Lethbridge's Pocket, accompanied part of the way by Mr. Tom,
of Mount Moffatt Station. Dahlke was riding a mare called
" Boadicea," and was wearing spurs. His saddle and spurs
were produced and identified. He also had in the lappel of his
coat two or three pins, described as bouquet pins, being steel
pins about an inch and a-half long with round glass beads for
heads. In September, 1901, his mother, on the occasion of his
last visit to her, had fastened a bouquet in his coat with two such
pins.
Doyle wore upon his arms, to hold up his shirt sleeves, two
armlets made of twisted wool, the ends of which were fastened by
two cyhndrical rings or clasps of metal rolled tightly round the
wool. He had, a short time before, given Constable Millard a
E. V. Patrick
Kenniff and
James Kekniff.
436
QUEENSLAND JUSTICE OF THE PEACE.
K II. Patkick
Kenniff and
James Kenniff.
pair of similar armlets similarly fastened, one of which was pro-
duced at the trial. He was riding a police horse called " George."
He had a Webley revolver, loaded in five chambers, strapped on
the saddle, and also a saddle pouch in which he carried his pipe
and tobacco, and which also contained a piece of soap broken from
a bar. He also wore spurs, and had in his belt five spare cartridges.
Johnson rode one horse, and led another, on which was a pack-
saddle with two large pack-bags, containing, amongst other things,
two sets of handcuffs of different kinds, and a chain described as a
dog chain and also a marching chain. Johnson had been informed
by Doyle that the object of their expedition was to look for the
prisoner James Kenniff.
On the previous Friday evening (Good Friday) the prisoners,
with their younger brother Thomas, a lad at that time of just
eighteen, had called at the kitchen of Carnarvon Head Station,
where they made inquiries for their father, and asked for Joseph
Ryan, the head stockman of Carnarvon. The- station residence
was in darkness. They there had an interview with Ryan and a
man named Burke, also employed on Carnarvon Station, in the
course of which prisoner James Kenniff said, " I will meet you
and Dahlke in a week's time : " and added " You can bring Doyle,
your pet policeman, and I will belt the lot of you." Ryan deposed
that at the same interview, just before leaving, prisoner Patrick
Kenniff pulled a revolver from under his coat, using words of
abuse, and, just after leaving to go away, had turned back and
said, " Whatever Dahlke gets, you will get the same."
Prisoner Patrick Kenniff had been arrested by Constable Doyle
in the month of February, and had then drawn a revolver upon
the constable. Both prisoners were in the habit of carrying
revolvers.
Carnarvon Head Station is about twenty miles from Lethbridge's
Pocket.
Doyle and his party, who were following the tracks of five
horses which had been shown him by Mr. Tom, entered Leth-
bridge's Pocket early on Sunday morning, the 30th March, by the
track on the south-western side. On descending the slope into
the Pocket, Johnson, who was riding in front picking up the tracks,
saw three men on horseback, with two pack-horses, coming towards
them out of a small gully which was between them and the creek.
These were the two prisoners and their brother Thomas. Johnson
called out, " Here they are." The three men stopped, left their
pack-horses, turned round, and galloped back across the gully,
CEIMINAL REPORTS, 1860-1907. 437
prisoner Patrick Kenniff and his brother Thomas going to the ^- '^- Pateiok
right towards the head of the creek, followed by Johnson, who James Kennifp.
left the pack-horse standing, while prisoner James Kennifi
galloped towards the creek, followed by Dahlke and Doyle on
horseback, who overtook him. Johnson, looking back and seeing •
this, stopped and went to them. He found Dahlke sitting on
his horse and holding James Kenniff's horse by the reins, while
Doyle, who was dismounted, was standing on the left hand side
of that prisoner's horse, trying to unhorse him. He dismounted,
and, standing on the right side of the prisoner James Kenniff,
caught his right foot, and threw him off his horse. He fell on
his feet, and Doyle seized him by the arm, and told Johnson to
go for the pack-bags in which were the handcuffs.
Johnson rode to his pack-horse, which was about two hundred
yards away, and while doing so heard a sound hke a revolver
shot, followed after a short interval by four other similar shots in
quick succession. He tried, unsuccessfully, to pull the hand-
cuffs out of the pack-bags without unstrapping them, and rode
back with the pack-horse towards the place where he had left
Dahlke, Doyle, and prisoner James Kenniff, but where he could
not now see anyone. On his way he saw the two prisoners gallop-
ing towards him, whereupon he let go of his pack-horse, turned,
and escaped into a patch of scrub a few yards off. Thence he
rode at full speed out of the Pocket to a place called the Pumphole,
distant about twelve miles on the other side of the range, where he
found Burke, who had gone there on the previous day to carry out
some work for Carnarvon Station. Burke immediately accom-
panied Johnson to Lethbridge's Pocket, where they arrived in
the afternoon of the same day (30th). On descending the range
they saw two horses, which proved to be Dahlke's mare Boadicea
and the poUce pack-horse. Burke caught the horses, and he
and Johnson took them away. They did not see any men or
bodies, or any other horses.
The bridle reins of the mare were hanging loose. The pommel
and both knee-pads of the saddle were splashed with freshly-
dried blood, presenting the appearance of having been sprinkled
" Uke rain drops." The withers of the mare, part of her mane,
a quart-pot pouch strapped to the seat of the saddle, and one of
the stirrup-irons, were also stained with blood. The pack-bags
had been taken off the pack-horse, and were lying empty on the
ground in the gully in which prisoners had first been seen by
Johnson.
438 QUEENSLAND JUSTICE OF THE PEACE.
R. V. Patrick Burke and Johnson then rode away, Burke returning to the
J-fMB^KEN™. Pumphole, while Johnson went to Mount Moffat, whence he
■ — started the same night for Mitchell, the nearest Pohce Station
from which there is telegraphic communication, accompanied
. by Mr. Tom. Ryan, who had arrived at the Pumphole that
afternoon, left the same night for the Upper Warrego PoHce
Station, and reported the matter.
On the following Tuesday Burke, accompanied by a man named
Tapp, who had arrived at the Pumphole during his absence on the
Sunday, returned to Lethbridge's Pocket. Burke found that the
pack-bags were gone from the gully. He also found, near the
bank of the creek, the ashes of three small fires, which had
had apparently been made with leaves and twigs. Under the
ashes was a substance which appeared to him to be clotted blood,
partly burnt. The leaves lying on the ground around this
locaUty had upon them marks like stains of sprinkled blood.
They also found piled up at the foot of an apple tree near the
ashes two pairs of spurs, which were produced and identified
as those worn by Dahlke and Doyle when they started on their
expedition.
On the following Thursday Constable Millard went to Leth-
bridge's Pocket mth Burke, who showed him three heaps of
ashes. Near them, and on the left side of the creek, he found an
apple tree, having upon it, at about two feet six inches or three
feet from the ground, a mark as of a bullet which had entered
the sap-wood and had thence been deflected and gone out, the
exit being a little lower than the entrance. He tried to find the
bullet, but unsuccessfully. About six yards to the right of this
tree, looking from the south-west, was a dead log having upon its
upper side, about fifteen inches from the ground, a mark of a
bullet which had grazed the top of the log. In a line from this
log were the three heaps of ashes, the first of which was about
thirty Hnks from the log, the second about ten links from the first,
and the third about thirty links from the second. Lower down
in the Pocket Millard found Doyle's horse " George " still carrying
-Doyle's saddle and equipments, and having thrown across the
saddle the two pack-bags which had been carried by the police
pack-horse on the Sunday morning. Doyle's pipe was still in
the saddle pouch, and the revolver was in the revolver pouch,
but it contained only one empty cartridge case, the other cart-
ridges having been drawn. It bore marks as of having been held
in a man's left hand wet with blood. The pack-bags contained
CRIMINAL REPORTS, 1860-1907- 489
about two hundred pounds weight of charcoal, which on careful ^- '• Patrick
J. T , , . , . . . Kbnniff and
examination was found to contain a large quantity of fragments Jambs Kbnniff.
of human bones from various parts of the body, partly burnt,
human teeth, shirt buttons, a shirt stud, and small fragments of
clothing material.
The medical practitioner, who received the bags on 8th April,
and examined their contents shortly after, was of opinion from
the thickness of the bones and the markings of the Ugaments
that they were those of an adult male or adult males, and, from
the fact that fat was found still undecayed between two vertebrae,
that the death of the person from whom they came must have been
recent — not more than twenty-one days at most before his
examination of them. The condition of some of the bones was
such as to show that they must have been pounded up by force.
In the charcoal were also found two metal cylinders or rings
exactly corresponding with those worn by Doyle, and two
bouquet pins with glass beads for heads exactly corresponding
with those used by Dahlke's mother when pinning the bouquet
on his breast, and with those worn by him on 30th March. A few
days later there was found in the creek-bed, lower down in Leth-
bridge's Pocket, a large flat rock about twelve feet square, bearing
the marks of recent very fierce fire, the rock being splintered by
the heat. On the rock were brown stains and a quantity of brown
congealed matter like burnt blood. At the foot of the rock
were several fragments of broken bone, a human tooth, a shirt
button, a piece of felt, and a piece of clothing. All these things
appeared to have been through the fire. In a fissure of the rock
was a piece of melted lead. Close by were a broom made of ti-treo
twigs tied together, which had apparently been used for sweeping
the rock, two pieces of stout stick, much charred at one end,
and covered with fat or grease, and a round boulder of stone
about six inches in diameter, which had on it brown stains as of
blood and greasy matter. Close by was found a piece of soap
like that which Doyle took with him on 30th March.
On 5th August the handcuffs and chain which had been put
in the pack-bags on 30th March were found in the pocket.
Neither Dahlke nor Doyle has been heard of or heard from since
30th March. The persons most likely to hear from them were
called, and were not aware of any reason why they should not
communicate with them, if alive.
Prisoners' brother Thomas Kennifi arrived, late on the evening
of 30th March, in company with his father and a younger brother,
440 QUEENSLAND JUSTICE OF THE PEACE.
R. V. Patrick at a place on Meteor Creek about thirty-one miles below Leth-
James Kenniff. bridge's Pocket. It was not shown that he had ever carried arms,
and it appeared that he was not in prisoners' company after that
day. Prisoners' father and two brothers (one of whom was
Thomas, the other being younger) had for some time been camped
in Lethbridge's Pocket, but had been requested to leave their
camp by the manager of the station on which it is situated.
Tracks, described as being apparently about four or five days old,
were followed by the pohce on the 4th and 5th AprU to a place
called Uraway Springs, where prisoners' father and his last-
mentioned sons were found in camp. These tracks went through
the place where Thomas KennifE had arrived in company with
the other two on the Sunday evening. The party had left various
things, including a racing saddle, the property of the prisoner
James Kenniff, clothes, and food, in a cave in the gorge.
After 30th March the prisoners (who deny that they were at
Lethbridge's Pocket on that day) appear from their own account
to have wandered through the bush together until their arrest
on 23rd June, when they were found to have two rifles and two
revolvers in their possession.
At the conclusion of the case for the prosecution, Mr. McGrath,
solicitor, who appeared as advocate for the prisoners, asked me to
withdraw the case from the jury on the grounds (1) that there
was no evidence of Doyle's death ; and (2) that there was no
evidence of the guilt of the prisoners either jointly or severally.
I refused to do so.
For the defence, evidence was offered to show that on the
mormng of 30th March the prisoners were at a place distant about
one hundred miles from Lethbridge's Pocket. They gave evi-
dence themselves, and called two witnesses to support their
allegations. According to their own account they were riding
all day on Good Friday to Carnarvon Station — distant twenty-
five or thirty miles from their starting point — and at about nine
o'clock that evening started to go to the Roma races, to be held
on 31st March, a distance of about one hundred and eighty
miles, their intention being to ride the same horses all the way
unless they happened to pick up any others on the road, and to
race their horses on Monday or Tuesday. By eleven o'clock on
the Saturday night they said, they had travelled about ninety-five
miles from Carnarvon Station, leaving eighty-four miles still to go.
They described what they took with them on the journey. The
description given by the other two witnesses as to what the
CEIMINAL EEPORTS, 1860-1907. 441
prisoners had with them in their camp, and as to the condition ?■ «• Patrick
K.ENNEFF AND
of their horses, was inconsistent with this meeting having taken Jambs Kbnnifp.
place eariier than some days after 30th March.
The jury found both prisoners guilty, and I passed sentence of
death, but respited execution.
At the request of Mr. McGrath I reserved the following questions
for the consideration of the Court : —
1. Was there evidence proper to be left to the jiiry of the
death of Doyle ?
2. Was there evidence proper to be left to the jury of the
guilt of the prisoners, jointly or severally ?
A copy of my notes is appended.
December 2, 3. The Questions Reserved were argiied at the
December Sittings of the Full Court.
Lukin (with him Blair and O'Rourke) for the prisoners ; There
was not sufficient evidence of the death of Doyle. The evidence
is circumstantial only. Even if there was proof of the corpus
delicti, as other persons were in the vicinity, the evidence is not
inconsistent with the prisoners' innocence. The common design
between them to do an unlawful act was not proved. There is
no direct proof that the act of murder was done by either of the
prisoners, and on the evidence it was not a proper conclusion
to draw that either one or the other had any share in the murder.
There is no evidence of concert between the prisoners, and,
in fact, the only evidence given, showing that James Kenniff
was under arrest, negatives any compUcity on his part. He
referred to The Criminal Code, ss. 7, 8 (63 Vic, No. 9, Sched. I.),
B. V. Borthwick (1779, 1 Doug. 207), R. v. White and Richardson
(1806, Russ. & R. 99), R. v. Duffy and Hunt (1830, 1 Lewin C.C.
194). In Rex v. Collison (1831, 4 C. & P. 565), Garrow B. said
that if the violence " was merely the result of the situation in
which he found himself and proceeded from the impulse of the
moment without any previous concert," the prisoners would be
entitled to an acquittal. R. v. Luck (1862, 3 F. & F. 483), R.
V. Lee (1864, 4 F. & F. 63), R. v. Dowdie (1901, 26 V.L.R. 637).
There is no evidence of concert prior to the arrest of James Kenniff,
and after the arrest there is nothing but conjecture ; conduct
subsequent to the murder is not evidence on which jury would
be justified in inferring concerted action prior to the crime.
Lilley (with him Stumm) for the Crown : The fact of the death of
Doyle is an irresistible inference from the evidence. R. v.
442
QUEENSLAND JUSTICE OF THE PEACE.
R. V. Patrick
Kennipf and
James Kenniit.
Cooper J
Murphy (1867, 4 W.W. & a'B. (L.) 63), E. v. Armstrong (1875, 13
Cox C.C, 184), R. V. Burton (1854, Dears C.C. 282), Russell,
Vol. III., 6th Ed., p. 158.
There was ample evidence as to concert. A common design to
do an unlawful act is estabUshed on the whole of the evidence ;
the subsequent conduct of the prisoners throws a reflected light on
the case. The jury were justified in their conclusion. If murder
is provable by subsequent acts, why should not concert be so
provable ?
Geiffith C.J. referred to Sir Samuel Romilly's argument in
Lord Melville's Case (1806, 29 State Trials, 195), R. v. Price
(1858, 8 Cox C.C. 96).
C.A.V.
December 10. Written judgments were deUvered by the
Judges constituting the Court.
Cooper J. : The prisoners were convicted after a trial which
lasted six days before the Chief Justice and a special jury of
having, on the 30th March last, wilfully murdered a poUce
constable named Doyle at a place called Lethbridge's Pocket,,
which is situated in a pastoral country very sparsely populated.
Our duty is to decide certain questions of law alone, and not'to
attempt to usurp the functions of the jury or of the Executive,
The evidence was voluminous, but those portions of it which
are necessary to the inquiry before us are set out in the case
stated for our opinion upon the questions reserved at the request
of the solicitor for the prisoners. There is a piece of evidence,
however, which the jury may have thought was of great import-
ance, to be found in a deposition of the witness Sam Johnson
put in on the prisoners' behalf in the course of the trial. It is to
the effect that when he began to return to Doyle with the pack-
horse he was unable to see the place where he had left him standing
in consequence of the view being obstructed by trees. It is clear,
therefore, if this is true, that he either passed through or round a
thick growth of trees on his way to the pack-horse.
The first question for our consideration is : " Was there evidence
proper to be left to the jury of the death of Doyle ? " The reasons
I have for answering this question in the affirniative, if stated at
length, would be a recapitulation of most of the evidence set out
in the case, and the impossibility of, accounting for his disappear-
ance on any other reasonable hypothesis.
Cooper J.
CEIMINAL REPORTS, 1860-1907. 443
The second question — " Was there evidence proper to be left to ?!' ^- Patrick
, . J, , -1 J , r r Kenniff and
the ]ury ot the guilt ot the prisoners jointly or severally ? " — Jambs Kenniff.
is one which presents greater difficulty. Whether or not Doyle
met his death by violence on the morning of the 30th March was a
question for the jury, and in my opinion it would have been highly
improper for any Judge to have directed the jury that there was
no evidence, or not sufficient evidence, that he lost his life through
gunshot wounds inflicted at that time. It is unnecessary to
restate the facts, which I think clearly show that the jury had
abundant evidence before them that both Doyle atid Dahlke were
shot to death within a few minutes. Their verdict shows that the
jury beUeved that evidence. Being perfectly justified, then,
in beUeving that these men were murdered, they had next to
consider whether the prisoners, or either of them, were guilty of
causing the death of Doyle.
As to Patrick Kenniff, there was evidence that immediately
before the killing he was seen in the vicinity ; that Doyle was
holding the other prisoner by the arm ; shots were heard, and
immediately afterwards he came racing towards the only living
unfriendly witness of the transaction in such a manner as to cause
that witness to fly in terror into the shelter of a scrub, from which
he galloped away. If, then, the jury believed that Doyle had
been shot to death at the time when Johnson heard the firing,
Patrick Kenniff' s behaviour to him, whether intended to scare
him off from seeing more, or to put him out of the way perman-
ently^ was such that a jury might reasonably think it inconsistent
with his innocence. I am clearly of opinion that the question
was rightly left to them. As to James Kenniff, it was. argued
that his presence at the scene of the killing was not voluntary, and
therefore that no presumption of his guilt can arise from that.
It is quite true that he was under arrest. When Doyle told
Johnson to go for the pack-bags, the former was holding James
Kenniff by the arm, and I think it may be assumed that the latter
heard the order quite as distinctly as did Johnson, who was on
the other side of the horse. Patrick Kenniff was not in sight at
the time, and it is probable, if not certain, that when he came to
the ground he could not see Johnson, who was shut out from view
by the trees already mentioned, and could not know where
Johnson had gone. There is evidence from which the jury
might reasonably conclude that Dahlke was shot first, on horse-
back, and that it took four shots from a person on horseback to
kill Doyle, who, for a distance of several yards, was moving on
444
QUEENSLAND JUSTICE OF THE PEACE.
R. V. Patkick
Kenniff and
Jambs Kenniff.
Cooper J.
foot. I am referring now to the evidence of Doyle being on foot,
when Johnson left, engaged in holding James Kenniff, to the
evidence of the accumulations of blood in three distinct places
at considerable distances apart, and the bullet marks on the tree
and log. I say that the jury might reasonably have come to that
conclusion, and, if so, they must have found that during an
appreciable part of the time James Kenniff was free. If he
had. been free for half-an-hour, or fifteen or ten minutes, could
it be contended that his subsequent conduct in helping Patrick
Kenniff to suppress the evidence of Johnson was reasonably
consistent with a favourable view of his complicity in the
murder ? And the jury had the advantage of hearing Johnson's
evidence on the point and of examining the mechanism of the
revolvers which belonged to the prisoners. How James Kennifi
used his time while he had his liberty no one but the prisoners
can precisely teU. They say they were a hundred miles away at
the time, but immediately after the last shot was fired he was
racing with Patrick Kenniff towards Johnson, who fled away
from them into the scrub. There was evidence that on the
preceding Friday evening the prisoners went to the kitchen at
Carnarvon Station, of which Dahlke was the manager. There
James Kenniff had a heated dispute Tyith the stockman Ryan,
in the presence of Burke, in which he was supported by Patrick
Kenniff. James Kenniff then said, " I wiU meet you and Dahlke
in about a week's time ; I am a better bloody man now than
when I fought Dahlke at Babilloora. I will meet you and Dahlke
in a week's time, and you can fetch your pet poUceman Doyle,
and I will belt the lot of you. I hear my old man is arrested ;
if he is, you had better look out for yourself." Patrick Kenniff
then drew a revolver from under his coat, and said : " You bloody
bastard, when you had no place to go to you came to us." They
then left, and as they were going Patrick Kenniff added : " What-
ever Dahlke gets, you will get the bloody same." I think that
this concerted action shows ill-will against Doyle and Dahlko
on the part of both prisoners. When next seen, in the morning
of the 30th March, the prisoners were together, and, when they
saw Doyle and Dahlke, bolted simultaneously. A little later they
were next seen acting in concert riding at the witness Johnson.
There was evidence that they usually carried firearms, and as they
were travelling with most of their possessions on the morning
of the 30th, it is a reasonable assumption that they either carried
their revolvers or had them readily accessible. Can it be said
CRIMINAL REPORTS, 1860-1907. 446
that there is no evidence from which a iury mieht reasonably ^- '• Patrick
conclude that they acted in concert to kill Doyle as soon as James James Kenniff.
KennifE was free from his custody ? Suppose that both prisoners _ -
had been in custody when Johnson went for the handcuffs ;
that the evidence were exactly the same as that before us, except
as to the bullet marks in the tree and log and the blood on the
mare and her saddle, I think that the prisoners' conduct in racing
at Johnson, the disposal of the bodies, and the effort to conceal
the traces of blood on the ground, their flight and evading pursuit,
and the other circumstances I have mentioned, would be rightly
left to the jury as evidence of the guilt of both prisoners on a
charge of wilful murder.
I think in the case under consideration there was evidence which
cast upon the prisoners the onus of showing facts for which the
jury might draw an inference favourable to them. If James
Kenniff so conducted himself whilst the murder was being com-
mitted as not to come within the provisions of s. 7 of The Criminal
Code, which is really a declaration of the common law, he could
have given evidence of it. Instead of that he attempted to prove
that he was not in the district at all, and failed.
The verdict of the jury who tried the case has been the subject of
adverse comment. It has been said that they must have made up
their minds to convict the prisoners and must have searched for
legal evidence to support that finding, and that Sam Johnson's
evidence is not worthy of belief. I do not think so. The jury
were twelve gentlemen chosen from a numerous panel of those
whose duty it is to decide the most momentous questions which
can be litigated in our commercial and social life. Hitherto they
have been trusted to hold the balance fairly and honorably.
And if I could beUeve that in a case involving the death penalty
they could be so inhuman and so false to their oaths as to decide
beforehand to send prisoners to the gallows if they could possibly
find a legal excuse for such a course, I should be ashamed to
be the servant of a community which expected me to administer
justice through such a polluted channel. But I am satisfied that
the accusation against them is unfounded, and therefore, with
the greatest reluctance, I think it my duty to give the same
publicity to my reasons for such belief as was originally given to
the accusation. There is a well-known trick of advocacy which
consists in ignoring important testimony — in declining to cross-
examine a witness on the airy assumption that his evidence will
not be believed. This device is usually an appeal to ignorance
446
QUEENSLAND JUSTICE OF THE PEACE.
R. V. PAtKICK
Kennipf and
James Kenniif.
Cooper J.
or to the prejudice of race, or class, or creed, or faction. In the
chain of evidence which brought the prisoners to justice, the Hnk
which had to bear the greatest strain was the testimony of Sam
Johnson, the aboriginal tracker. There are several well-known
tests of the amount of reliance which a jury should place upon
any witness's words, such as the personal interest of the witness
in the result of the trial, the probability of his story, the con-
sistency of his statement with other statements made by him
about the same matter, the absence of contradiction, the memory
and powers of observation of the witness. These tests are always
applied through the searching fire of cross-examination, and if
an intelligent, unbiassed tribunal finds a witness who, frima
facie, has no interest in the result, telling a probable, uncontra-
dicted story, it usually feels bound to accept it. The only contra-
diction of Sam Johnson's story was contained in an attempt
to prove the alibi, which failed. I cannot imagine any interest
the witness had in the result, unless he committed the murder
himself, which is preposterous. He must have told Burke the
whole story immediately after its occurrence. Neither Burke
nor Johnson, of course, could be allowed to say in examination-
in-chief what story the latter told, but cross-examination would
have analysed the evidence and broken it down if there had been
any inconsistencies in it. The same remarks apply to Mr. Tom,
to whom Johnson also told the story. But there was no attempt
at cross-examination in any of these matters, merely the assump-
tion that because the witness was not a white man his story
ought not to be believed. The only inference a jury could
properly draw from this would be that the witness was teUing the
truth. I speak as a judge of very wide experience of trials by
jury, and of aboriginal, Polynesian, Chinese, and Hindu witnesses.
It is a rash thing for anyone to say what he would have done as
a juryman without having the inestimable advantage of seeing
the demeanour of the witness and hearing the whole trial ;
but I think if I had been on the jury, and had believed all the
oridence given for the prosecution, and had been guided by the
statement of the law as laid down by the learned Chief Justice,
I should have been bound to come to the same conclusion as they
did. I think the questions submitted to us should be answered
in the affirmative.
Chubb J.
Chtjbb J. : Two questions have been submitted for the con-
sideration of the Court, viz : —
Chubb J.
CRIMINAL REPORTS, 1860-1907. 4i7
1. Was there evidence proper to be left to the iury of the ^- '-'• I'^tmck
j.xSjNNIE'E' and
death of Doyle ? Jambs Kennife,
2. Was there evidence proper to be left to the jury of the
guilt of the prisoners jointly or severally ?
Upon the first question I have experienced no difficulty. I am
of opinion that there was sufficient evidence to justify the jury
in finding that Doyle was shot to death at the place and on the
date charged in the indictment. I do not think it necessary to
refer to the details of the identification ; they are fully stated in
the case, and are amply sufficient to negative any other reasonable
hypothesis. " The body has been found dead " within Lord
Hale's rule.
As regards the second question, I have had some difficulty,
but only as to James Kenniff, in coming to an opinion, having
been much impressed by the view taken by my brother Real during
the argument with respect to that prisoner ; but after having
given to the case the best consideration of which I am capable, I
have come to the conclusion that there was evidence proper to
go to the jury of the guilt of both prisoners. Whatever of diffi-
culty there is in the case arises from the evidence of Johnson
as to the position in which James Kenniff stood at the last moment
that Johnson saw him, Doyle, and Dahlke together. The prisoner
was undoubtedly captured and held by Doyle under arrest.
From this it is contended that the evidence raised a presumption
of innocence in favour of James Kenniff which was not rebutted
by any other evidence in the case, and that the learned Chief
Justice at the trial ought to have directed the jury that there
was no evidence against him. It was contended that the assent
of the prisoner to the murder was not established. That his
presence as it was, under the circumstances, involuntary, and,
being there under arrest, compulsory, and that from his mere
presence no inference of compHcity could be drawn against him.
It is true that an assent must be manifested by some act, R. v.
Price (1858, 8 Cox C.C. 96), and the act of assent must, at tho
latest, be coincident with the crime. In this case no act of assent
is proved by the testimony of any eye witness. The evidence is
circumstantial. Were, then, the jury at liberty to infer that
assent from the subsequent conduct of the prisoner, if that
conduct justified such a reasonable inference ? I think they were.
The mere presence of a person at the committal of a crime imposes
no criminal responsibility upon him, even where he has the means
of preventing it, and does not interfere to prevent it. To make
448
QUEENSLAND JUSTICE OF THE PEACE.
R. V. Patrick
Keskipf and
Jambs KenNiff.
Chubb J.
him an accomplice he must assent to the crime, and his assent
must be manifested by some act or conduct. It was accordingly-
contended that there was no evidence of any such assent.
This contention was based upon the fact that after Johnson,
had turned his back upon the party to go for the pack-horse,
leaving James Kennifl' a prisoner in the hands of Doyle, no one,
so far as the case shows, but Dahlke, who we may take it is dead,
and the prisoners, were eye witnesses to what then occurred.
It was urged that the situation in which James Kennifi was left
by Johnson conclusively negatives the prisoner's assent not only
up to that moment, but subsequently, inasmuch as there was
no evidence antecedent or subsequent thereto of any act or conduct
on his part by which his assent could be established. If this were
so that would be undoubted, but I cannot agree that this was the
case. In my opinion complicity may be established by subsequent
equivocal acts or conduct from which a reasonable inference of
guUt can be drawn. Was there any act or conduct of James
Kenniff of an equivocal character which cast upon him the
burden of satisfying the jury that that act or conduct was, qua
the murder, innocent. I think there was, viz. : The act of the
prisoners immediately after the murder in galloping together in
pursuit of Johnson. From this I think the jury could have
reasonably drawn inferences that the prisoners were under the
behef that Johnson was an eye witness to the murder, and in
concert they pursued him for the purpose of destroying testimony
of the crime — he being, other than themselves, the only eye
witness of it. The prisoners' counsel have most strenuously
insisted that these inferences could not reasonably have been
drawn. That at the highest the pursuit of Johnson only justified
an inference that James Kenniff was no more than an accessory
after the fact. With this I do not agree. No doubt the jury
could draw such an inference, because it is not inconceivable
that an accessory after the fact to a murder might be willing, in
order to shield the principal offender, to run the risk of a hanging
by assisting in the murder of an eye witness, but, I think, a more
reasonable inference to draw is that having already incurred the
risk of hanging for one murder, in which he has been concerned as
a principal, he would not have much compunction in committing
a second one when the second one would destroy proof of the first.
The time occupied by Johnson in going to the pack-horse, during
which he heard the shots, whether he heard all of them before he
got there or two before and three after, is not absolutely fixed.
CRIMINAL REPORTS, 1860-1907. 449
R. V. Patrick .
Kenniff and
It could only be approximately estimated by the distance he had
to go, and the time taken in going. He says the distance was, James Kenniff,
he thinks, two hundred yards. Might it not have been some- ch"^J
thing more ? How fast he rode he did not say. All he says
about this pace is that he trotted back. It might, therefore,
fairly be inferred that he trotted to the pack-horse, but it may be
assumed that he went as fast as he reasonably could. As to the
shooting he heard first one shot, and then four other shots fired
quickly. What the length of the pause was between the first
shot and the second does not appear — it could not have been very
great. What does fired quickly mean ? Hardly just as fast as
one could pull a trigger, even if the weapon is a self-cocking one.
It is common knowledge, I think, that to discharge a revolver
with any pretence of taken aim at a stationary object with any
expectation of hitting it must require, at least, a second or two.
If the object is moving the aim to be effective must be more deliber-
ate. The time, therefore, occupied in the shooting could only
be a matter of inference for the jury from the material they had
before them. Much may be done even in so short a time as one
minute. Was it not possible that the moment Johnson's back
was turned, or at some time however momentary before or at the
time the shooting began, or before its conclusion, James Kenniff
wrenched himself free from the grip of Doyle, or for some reason
not difficult to surmise was let go by Doyle, or was rescued by
Patrick Kenniff, who, after having first fied, returned to the
scene of the murder ? Clearly it was. The longer the time the
greater the possibility. Then, if it was possible, James Kenniff
undoubtedly had an opportunity of assisting in the murder. I
think it could be inferred also that the prisoners had firearms,
although none were seen. Dahlke and Johnson had none,
and Doyle's revolver was on his saddle. The shots could, there-
fore, be presumed as coming from the prisoners who were,
undoubtedly, in the habit of carrying revolvers. And when last
seen by the police, prisoners were evidently leaving camp with
their belongings. Could the jury then, from the evidence,
reasonably infer that James Kenniff did assist ? I think they
could draw that inference. The equivocal act, the act of the
prisoners in pursuing Johnson, justifying, as I think, the inference
of James Kenniff's compHcity in the murder, displaced the pre-
sumption of innocence, which the circumstances previously, so
far as they are known, raised in favour of James Kenniff, and
raised a presumption of guilt, a disputable one, which cast upon
DD
Chubb J,
450 QUEENSLAND JUSTICE OF- THE PEACE.
R. V. Patrick the prisoner the necessity of rebutting it — the onus was, therefore,
■Jam^bTkbhnifp. shifted on to him. The question, then, for the jury was, had he
rebutted it? As to Patrick ^ Kenniff, his compHcity could be
inferred from- his unexplained' presence at the murder. When
first he caught sight of the police party he fled, but he afterwards
caine back to the scene of the murder. The jury would, therefore,
bo justified in inferring against him that he returned for the
purpose of taking part in whatever unlawful act was committedw
And so he could be held responsible for what occurred. The act
in pursuing Johnson would, in like manner, justify a like infererfce
against him as against James. I think, therefore, there was
evidence proper to be left to the jury. 'I do not say the jury
were bound to draw the inferences, which in my judgment the
evidence permitted, necessary to establish the guilt of the prisoners.
All I'^ay is that I think those inferences could have been reason-
ably drawn. In a case like this it is the duty of the jury to con-
sider the evidence from all points of view. In The Queen v.
Fraiiz (1865V 2 F. & F. at p. 582), Blackburn J. charged the jury
as follows :^-" The whole case turns on circumstantial evidence —
i.e., no eyes have witnessed the act. You are to weigh each
circumstance to see if it is'-proved by itself. There are many
oiroumstances put-in evidence ;' you may believe some, and think
others not established, but when you take all those things that
you are satisfied of, take into view all the evidence and see those
circumstances, some of the facts are more strongly established
than others. But the question for you is, if all the circumstances
you think established lead you to such certainty as you would
act on in a matter of great consequence, that the prisoner was
one of those persons ; if so, it is your duty to public justice to
say so. But if, taking all those circumstances, you think that
fact not made out, the prisoner is entitled to be acquitted."
And so far as I am aware there is nothing to show that the jury
here did' not properly consider' the evideflce'-jin accordance with
the" directions of law given to them by the learned Chief Justice.
The cogency of the evidence as a whole was for the jury to deter-
mine, and all that this Court has to say is whether it thinks there
was proper evidence to be submitted to the jury on the questions
raised, arid I am of opinion that there was. In my judgment,
therefore, the conviction was right, and the judgment should be
afBrmed. I entirely concur with the observations that have been
made by my brother Cdoper with reference to the conduct of the
jury.
CRIMINAL REPOETS, 1860-1907. .451
Real J. : The questions raised for the opinion of this Court are : ^- ^'- Patrick
, ., 1-,,. .,1 ^, Kenniff and
Was there evidence upon which the jury were entitled to find James Kennif?'.
that Doyle is dead ? Was there evidence upon which the jury ~^
could find prisoners or either of them guilty of the murder of
Doyle ? Considering the first question. At Lethbridge's Pocket,
& place distant about 18 or 20 miles from Mount Moffat, the
nearest residence thereto, Doyle was last seen ahve on Sunday,
30th pf March. He had then in custody the prisoner James
Kenniff, and it was his duty to retain him in custody. Dahlke
was assisting him, Dahlke being on horseback; prisoner and
Doyle on foot. Doyle directed Sam Johnson to go and bring
up a, pack-horse, then distant about 200 yards. Whilst Johnson
was going for the pack-horse, he heard five shots, and as he
returned he saw the prisoner James Kenniff free and; vith him
the prisoner Patrick Kenniff galloping towards him (Johnson).
Neither Doyle nor Dahlke have ever since been heard of alive.
The horse of Dahlke wa,s found near by the same day, and so
■covered with blood as to indicate that he or somebody had been
shot whilst riding. The place being examined showed such signs
as would appear if a man on the ground was shot by some person
riding. The spurs which were worn by Doyle and Dahlke were
found near the spot, placed together against a tree. A few days
after the horse of Doyle was found near the place with his saddle
and other things on, and thrown over it saddle bags, which, on
Sunday, the 30th, had been on the police pack-horse, and were
afterwards seen on the , ground near by. These saddle bags
contained charred remains, which the doctor examining on the
8th of April was able to declare were the remains of adult male
■or males- des^d not more than twenty-one days. Amongst the
•charred remains wer^ certain small articles similar to articles
worn by. Dahlke ,^nd Doyle respectively. There w^'S a large rock
within- the- -pocket .where there had evidently been a fierce fire,
•and all -the aj^earance as if animal substance had been con-
sumed in the fire. There were many other circumstances all
pointing to the same conclusion, that Doyle and Dahlke had
been killed, and-their remains consumed by fire, except such part
thereof as may have been amongst the contents of the saddle
bags already -mentioned. Many circumstances supporting this
conclusion will appear in considering the question as to evidence
against the prisoners for the murder of Doyle, but I think I
have referred to quite enough to enable the jury to find that Doyle
was dead. On the 21st March Inspector FitzGerald, of Roma,
452 QUEENSLAND JUSTICE OF THE PEACE.
R. V. Patrick laid an information against the two prisoners for stealing a mare.
jAMBs^KENinrF. Two warrants were issued, one for the arrest of each prisoner,
— and in consequence thereof FitzGerald wired to Inspector Graham
at Charleville, who forwarded it to Constable Doyle, stationed
at the Upper Warrego Police Station ; with him there were
Constable Millard and Black Tracker Sam Johnson. The police
station is about twelve miles from Carnarvon Station. On the
27th of March Dahlke, manager of Carnarvon, came to the pohce
station. He remained there that night, and the next day Doyle,
Dahlke, and the black tracker left the police station. Doyle,
before leaving, told Millard where he was going, showed him the
telegram, and then or at some later time told the tracker that
they were going to look for James Kenniff. On the 28th they
went to Mount Moffat. On the 29th (Saturday) they started
from Mount Moffat following horse tracks towards Lethbridge'&
Pocket, which the black speaks of as old horse tracks, but which
Mr. Tom, the manager of Mount Moffat, says were the day before
fresh tracks of five horses, and were followed by him to within
five miles of the Pocket. That night Doyle, Dahlke, and the
tracker camped at Marlong, about seven miles from the Pocket.
There is no settlement in the Pocket, but the father of prisoners
had a camp there, and some time before was ordered to move
from it. On Sunday morning Doyle, Dahlke, and the tracker
left Marlong for the Pocket. Sam Johnson, the black tracker,
says : " We started with the same horses with the same equip-
ments " — that is to say, he rode one horse, leading a pack-
horse — " Dahlke riding a racing mare, and Doyle a police horse
named ' George.' Doyle carried a revolver in his saddle-pouch,
which Millard says he always had loaded. Dahlke and Johnson
were without firearms. I (the tracker) rode in front, leading
Dandy Pat. I was following horse tracks — the same as the day
before. They led us to Lethbridge's Pocket. I saw prisoners
and Tom Kenniff in the Pocket. I first saw their heads coming
up out of the gully. When they came up out of the gully they
pulled up. They were riding with two pack-horses. They
left the pack-horses, and turned round and raced away across the
gully. I let the pack-horse go, chucked the halter so as to catch
in a log, and raced after Tom and Pat. They went right up the
gully. Jim raced towards the creek. Doyle and Dahlke followed
him. I looked back, saw that Doyle and Dahlke had got Jim,
went back, dismounted. Dahlke was holding Jim's horse by the
reins. Doyle was on foot on the near side of Jim, trying to pull
CRIMINAL EEPOETS, 1860-1907. 453
iim off. I went to his right foot, chucked him over to Doyle's ^- «■ Patrick
side. Doyle told me to go back and get the pack-horse as quick James Kenniff
as I could. Doyle had hold of Jim Kennifi's arm — right arm, I tTTt
think. Jim had fallen on his feet. Ran back to horse, ten yards
or so, and I jumped on it. ' George ' was feeding. I went
to the pack-horse, 200 yards, I think. Before I got to it I heard
a shot fired, and then other shots fired quickly — five altogether.
I went on to the pack-horse. Then I looked back and saw the
place where Doyle and Dahlke had been, but could not see any-
body. I put my hand in the pack-bag, but could not pull the hand-
cuffs out. The bag was too tight. I jumped on my horse, and
trotted back with the pack-horse. When I got to the gully
near where I had seen Doyle and Dahlke I saw Pat and Jim
Kenniff galloping towards me. I walked along for a while till
they came close. Then I let the pack-horse go, puUed up, and
raced away. The shots were louder than a poHce revolver."
There was evidence that on a previous occasion Doyle in arresting
Pat Kenniff chased him with a revolver drawn, and that he
(Doyle) afterward said Patrick Kenniff had drawn his (Kenniff' s)
revolver, and that Kenniff, when asking for a return of the revolver,
and charged with drawing it, had said, " That is nonsense ; do I
look hke a man who would use a revolver ? " That Pat Kenniff
had on the previous Friday night drawn a revolver from under
his coat, and, showing it to Ryan, said, " Whatever Dahlke gets
you win get, too." There was evidence that on the occasion
mentioned James Kenniff had spoken about Dahlke having given
him a hiding, that he (James Kenniff) was a better man than
he was at that time, and would meet Dahlke in a week's time,
when he would be able to belt the lot of them — Dahlke and Ryan,
and even Doyle. The horse of Dahlke was found with blood
so spattered on him, and the saddle, etc., as to show that he
(Dahlke) had been shot on horseback. The place where Doyle
and Dahlke had James Kenniff prisoner, or a place near thereto —
the evidence did not show whether or not the exact spot was
examined — and on a tree about fifteen yards from the creak, was
the mark of a bullet about three feet high, and with downward
course ; on a dry log five yards from the tree, and down the creek
was the mark of a bullet about two feet from the ground, and
having a downward course. A foot from the log, in a line from
where the bullet-mark was, there was on the 8th of April (Dillon's
evidence) the ashes of a small fire ; about eight yards lower down
another heap of ashes ; and about three yards still lower down
45i
QUEENSLAND JUSTICE OF THE PEACE.
R. I. Patrick
Kenniff and
James Kenniff.
Eeal J.
a third. Some charcoal taken from these heaps showed a re-
action of blood. There was evidence that usua-lly both prisoner*
carried revolvers, and that in that part of the country it- was usual
to carry revolvers or other firearms. The case presented to th.e^'
jury was, as has been argued before us, that Doyle and Dahlke
were killed by these shots. That Patrick Kenniff was th'e' man
that fired the first, if not all the shots, and that James Kenniff on
his release from custody by reason of the shooting by Patrick
Kenniff became a participant in the crime. It is not suggested
how or even why, except that in argument Mr. Lilley (counsel
for the Crown) before us boldly stated that the jury ought to
conclude so, because it was natural for one brother to throw
in his lot with the other. That certainly is not evidence upon
which a jury could act. There is not, under the, circumstances —
as Sam Johnson did not look back while the shots were fired
— there cannot be any direct evidence against James Kenniff
of any act done before the shooting concluded ; and to my
mind there is no circumstantial evidence upon which the
jury could find facts to support such an inference. He (James
Kenniff) is not shown to have had a revolver at the time
of his arrest, or when afterwards seen by Johnson ; he is
not shown to have done any act beyond running away to
resist arrest ; he is not shown to have used any threat, or done
anything to show an intention or desire to use force to escape
arrest ; he is not shown previous to arrest to have made any threat
against the persons arresting him beyond referring to a hiding-
which he had received from Dahlke, and the assertion that he
was on the Friday previous to arrest a better man than he had
been when he received that hiding, and a declaration to the
effect that in a week's time he would be ready to again try con--
elusions. At the time when the constable came upon them they
were not doing anything illegal or improper. His presence at the
scene of the shooting was involuntary. Taking the evidence of the
blackfellow as true and reliable in every particular, where it can be
construed as unfavourable to James Kenniff, and all the other
evidence looked at in the same hostile light, what does it show ?
He (James) was a prisoner in the custody of Doyle and Dahlke
when Sam Johnson started for his pack-horse, said to be about
200 yards away. The shooting took place while Johnson was
going that distance at the time Johnson left prisoner in the
custody of Doyle and Dahlke. Dahlke was on horseback, Doyle
and prisoner on foot, Doyle holding the prisoner. Dahlke was
CEIMINAL EEPORTB, 1860-1907. 455
shot on horseback. Two of the shots at least were fired from ^; "• Patrick
Kbnnifb' and
horseback at a man on foot moving in the direction of down the Jambs Kenniff..
creek., That m.ari, no doubt, was Doyle, and the other shot;s from _ ~r~.
the marks where the blood was found would seem to have- been
fired at him. There is no evidence of any shot having been fired
as if by a man on the ground; Doyle does not appear to have
moved altogether more than fifty feet or seventy feet. When
Johnson turned to come back with the pack-horse he saw the
place where he had left the prisoner, Doyle, and Dahlke. Ho
saw no one there. What he next saw was Patrick Kenniff
(who was not there when he went for the pack-horse, and whom
he had seen shortly before riding in another direction), together
with the prisoner James Kenniff, riding rapidly in his direction.
There is no evidence they or either of them had any weapon.
How could a jury find any fact from that evidence from which
they could draw any inference that James Kenniff had anything
to do with the shooting ? To permit them so to do would, it
appears to me, in the words of Williams J., in the case of R. v.
Dowdle and Others (1901, 26 V.L.R. 637), "to find him guilty on
conjecture." Circumstantial evidence is defined by Sir Samuel
Romilly (1806, 29 State Trials, at p. 1195), as " evidence of
conduct or of circumstances which cannot be accounted for upon
any hypothesis but that of the party being guilty." I accept that
definition. I think it is correct. I would add, to prevent any
possibility of confusion, " Guilty of the offence charged." The
time that elapsed between the first and last shot, the direction
of the bullets as evidenced by the marks, etc., are to my mind
not only consistent with the hypothesis of innocence, but abso-
lutely inconsistent with any contention of James Kenniff being
the actual perpetrator. As to the question of aiding, assisting, or
encouraging, the evidence that Doyle was not kept in the one
place is altogether inconsistent with James Kenniff giving any
active assistance. He had, of course, the power to speak words of
encouragement to the actual perpetrator. It is, of course,
impossible, except by his own evidence, to prOve that he did not
do that, but it is for the Crown to proV^e that he did. A man
is never called upon to prove a negative, and to surmise that he
did something of that nature would be to take mere conjecture
for evidence. There is not, indeed, any reasonable ground
to conjecture that he did it. Why should he ? The men firing
these shots would not be likely to require words of encouragement.
And see R. v. Atkinson and Others (1869, 11 Cox C.C. 330), which
456
QUEENSLAND JUSTICE OF THE PEACE.
R. V. Patrick
Kenniff and
James Kenniff.
Real J.
decided that presence at the commission of an offence— even
voluntary presence— did not make a man liable unless he by word
or act helped, incited, or encouraged it, even although he had the
power of preventing it, and when asked to use his power, only
smUed. And see R. v. Lee and Another (1864, 4 F. & F. at p. 63),
where two went to rob, and where one used an act of violence
causing death, and after the act the other joined in to complete
the robbing. Held by Pollock C.B. no evidence of a joint design
to use violence, at all events not sufficient evidence to convict.
See also R. v. Leonard White and John Richardson (1806, Russ.
& R., p. 99). Prisoners were found in the house mentioned in the
indictment between two and three in the morning. One of the
shutters was forced off, sash inside lifted up, but shutters inside
had not been forced. They were interrupted, and ran away
in different directions. Richardson was caught. Nothing was
found on him. White, who ran in opposite direction, was caught,
and struck his captor with an iron crow, lower end shaped Uke a
chisel. The Judge directed the jury : That if the prisoners came
with the same illegal design, both determined to resist, the act of
one would be the act of the other, and it might have been part
of the plan to take different ways in order to divide force against
them. Both prisoners were found guilty. Question for the Court
was : Any evidence to convict Richardson. All the Judges were
of opinion no evidence to justify a verdict against Richardson.
That is a clear decision that there must be some evidence, and that
a jury ought not to be permitted to find a man guilty on mere
conjecture. It is said in this case that the act of prisoner James
Kenniff in racing towards Johnson in company with Patrick
Kenniff might be taken by the jury as an attempt on his part to
kill Johnson. I do not think a jury, acting reasonably, could draw
such an inference. They are not shown to have had any weapon,
and within ten yards of Johnson was the scrub, upon his entering
which they do not appear to have troubled him ; indeed, this
chasing of the blackfellow without any weapon seems to me to
point to a conclusion that not only was James Kenniff not a
participator in the murder of Doyle, but that Patrick Kenniff was
not the actual perpetrator. I see no ground for holding that the
jury could construe the act of James Kenniff as indicating an
intention to kill the black ; and if it did, and even if he had killed
him, although, of course, that in itself would be murder, and the
act of driving him away without any intention to kill would make
him an accessory after the fact, it could not make him, and under
CEIMINAL EEPORTS, 1860-1907. 457
the circumstances of this case I am of opinion does not entitle ^- «'• Patrick
the jury to draw an inference, that he was guilty of the murder of james Kennift.
Doyle. Therefore, I am of opinion that the finding of the jury — j
against James Kenniff is bad, and that the judgment ought to
be set aside.
As to the prisoner Patrick Kenniff, the case for the Crown
was that he was the person who fired the shot, and the jury, so
far as I can judge, were asked to come to that conclusion on
the ground that there was not shown to be any other person who
could commit the offence. The evidence of Sergeant Rody Byrne
shows that there were in Lethbridge's Pocket on that Sunday
three other persons, any one of whom could have committed the
offence, and to protect some of whom one could easily under-
stand Patrick Kenniff taking the burden on himself. But it
matters not by whose hand the shots were fired, Patrick Kenniff,
by his return to the spot after his flight from arrest, and by his
presence at the time of the shooting, unaccounted for and un-
explainable except on the assumption that he either came to
take part in the act or to assist some person who was to do the act,
renders himself liable to be found guilty if the jury so decide. I
think, however, upon the evidence, especially the negative
evidence, arising from the fact that the black, when Pat Kenniff
was racing towards him, did not see any arms with him, and the
evidence of Rody Byrne and others tending to show immediate
flight of other persons from the scene of the murder, and the
act of these persons showing a desire to estabhsh an alibi, it was
open to the jury to conclude, if they had thought proper so to do,
that Patrick Kenniff was not the perpetrator, and may within
the bounds of reasonable probability have returned not to assist,
but to prevent the perpetration. But the jury clearly were
not bound to come to that conclusion. There was, as I have said,
evidence upon which they could find Patrick Kennifi was the actual
perpetrator, or at all events was present to aid and assist, and I
agree with my brother Judges that in his case the judgment must
be affirmed. On the whole case, therefore, I am of opinion there
was evidence of the death of Doyle, evidence upon which the jury
could convict the prisoner Patrick Kenniff. But I am of opinion
that there was no evidence whereon the jury could find James
Kenniff had anything to do with that shooting. I am not here
to decide on his guilt or innocence, but on the evidence. A man
cannot be convicted on conjecture. M. v. Price (1858, 8 Cox
C.C. 96) ; and the evidence against him being such only as would
support conjecture, the judgment against him should be set aside.
Eeal J.
458 QUEENSLAND JUSTICE OF THE PEACE.
E. V. Patrick i^ justice to the jury, I hppe^that any person reading the
JAM^^KENKiri-. remarks of my brother Cooper , will, before coming- to the con-
clusion that my remarks reflected on the conduct of the jury in.
the manner suggested, read what I said. What I said was not so
intended. I may add, however, that if I had any comment
to make on the conduct of the jury I would not hesitate to make
it. In this case I had not read the evidence, and I said so at the
time, yet my brother comes up here and makes the remarks he
has made. I have no more to say, except to refer to the case of
Ex parte Aldred ([1902] A.C. 81), which shows that Judges may
express their opinions. In that case it was said : " Their lord-
ships are of opinion that whatever may be said about this matter
-^and there are some observations which commend themselves to
their minds — there is nothing here which can justify the Court in
setting aside the conviction." That case shows that the highest
Court sometimes considers it its duty to make reflections. I
would never hesitate to perform my duty, but I consider that
if I were to make reflections on the conduct of persons engaged
as jurors, except upon a matter of public notoriety, it would be
improper. This, however, was an extraordinary and unusual case,
and that is shown by the fact that it was tried by a special jury,
and not by the ordinary criminal tribunal of the country.
Griffith CJ, Griffith C.J. : I agree with my brothers Cooper and Chubb
in thinking that the conviction of both prisoners should be affirmed,
and I should not have thought it necessary to add anything but
for the strenuousness with which the case was argued for the
prisoner James Kenniff, and for some unusual incidents which
occurred during the argument. I think it right for these reasons to
add a few words.
As to the questions of the proof of Doyle's death, and the
evidence as to the compUoity of the prisoner Patrick Kennifi, I
do not think the case is open to serious argument. What I have
to say refers to the case of the prisoner James Kenniff. The
Court does not in its Criminal Jurisdiction sit as a Court of Review
to review the decisions of the juries upon questions of fact.
That function belongs to the Executive Council. The function
of the Court is limited, so far as questions of fact are concerned,
to enquiring whether there is evidence upon which reasonable
men, properly instructed as to the law, could find the facts
to be such as they are actually found by the verdict. To quote
the language of the present Lord Chancellor in delivering the
judgment of the Judicial Committee on a recent petition for
CRIMINAL REPOETS, 1860-1907. 459
leave to appeal from a conviction : "Whether or not their B. d. Patrick
Lordships would have formed the same opinion or found the James Kbnniff.
same verdict is not the question. If they would not, that is -^ r ^
aot- enough to set aside the verdict of the jury which has been
arrived at." Ex parte Aldred ([1902] A.C. 81). The Couri
cannot prescribe to a jury that they shall attach any particular
weight to. any particular piece of testimony, or that they shall
draw,. or refuse to draw, any particular inference from any fact
proved to their satisfaction. They are the sole judges of the
credibility and accuracy of the witnesses in every particular of
their evidence, whether it tells in favour of or adversely to the
accused, and they alone are charged with the function of dra-^dng
inferences of fact. The function of the Court is to see that the
legal evidence is sufl&cient to warrant the inferences which they
must be taken to have drawn. In this case there was evidence
from which, if believed by the jury, it might be reasonably and
properly inferred that Doyle and Dahlke were both murdered
by shooting — one within a very short time of the other — in
the presence of both prisoners, both beingat that time free agents,
and both having firearms in their possession or within their <
immediate reach, and that immediately after the murder both
prisoners, acting in concert, attempted to suppress the only
living unfriendly witness of their presence at the crime. There
is no evidence by any eye witness as to the actual details of the
crime, which were, however, known to the prisoners. It is clear
that from this evidence, with other evidence in the case, a strong
inference, commonly called a presumption, would arise, in the
absence of evidence to rebut such an inference, that both prisoners
were concerned in the murder, either as the actual perpetrators
of the crime in concert, or as aiding the actual perpetrator or
perpetrators, and it was for the jury to say whether they would
draw that inference or not. They were, of course, bound also
to take into consideration any other evidence which might tend
to strengthen or weaken or rebut this inference. But whether
any other evidence would have such an effect or not must depend
upon the facts which they believed to be established by it, either
(lirectly or by way of inference. The evidence relied upon in thf>
present case to rebut this inference or presumption of guilt,
or rather to prevent it from being drawn, is that when Doyle was
last seen alive — a very short time before his death — he had the
prisoner James KennifE in custody. There was, however, nothing
to show how long the prisoner continued in custody, and nothing
460
QUEENSLAND JUSTICE OF THE PEACE.
R. V. Patrick
KBNNIFr AND
James Kennipp.
Griffith C.J.
from which the jury were bound to draw the inference that he
was still in custody at the time of the murder of Dahlke, which
was probably the first in time, or, indeed, that his arrest con-
tinued at all after Doyle had lost the assistance of the tracker
whom he had sent for the handcuffs. There was, on the other
hand, the positive evidence of other witnesses as to physical facts
afterwards discovered indicating that before the murder of Doyle
he had escaped from custody, and at the time of the murder had
for some time, the exact duration of which is uncertain, been free
from restraint, and in a position to take part in the crime, either
by active concert or by aiding the actual murderer. The length
of this period of time is, no doubt, an important element in the
case, but, in any view which the jury may have taken of the
evidence bearing on the point, the time was amply sufficient to
enable the prisoner to assist the actual murderer. It is true that
the mere fact of presence at the commission of an offence does
not, of itself, constitute a man an aider and abetter, and that there
must be some evidence of something in the nature of assistance
or encouragement, either by act or word. But it is not necessary
that the act or word should be proved by the testimony of a
witness actually present. It may be inferred from subsequent
conduct, or any other circumstances, in the same way as actual
participation may be inferred from similar facts. Bichardson's
Case, R. v. White and Richardson (1806, Russ. & R. 99), referred
to by my brother Real, differs from the present in this : That
in that case the prisoners, who had been jointly engaged in attempt-
ing to commit the crime of burglary had, before the commission
of the murderous assault by White, separated and run away in
opposite directions, and did not again meet before the commission
of the assault ; while in the present case, although the prisoners at
first ran in opposite directions, they met again before the com-
mission of the crime, and were both present at it, and, moreover,
immediately after it endeavoured to suppress the poUce officer
who was a witness to their presence. If these facts had been
present in Richardson's case I cannot doubt that the decision
would have been different. In truth, the question in the present
case is reduced to this : Were the jury precluded by the evidence
of the witness Sam Johnson, that shortly before the crime the
prisoner James Kenniff was under restraint, from drawing the
inference, which could properly be drawn from other evidence,
that the prisoner was a participator in the crime ? What was the
effect of that evidence was, in my judgment, a question of fact
CEIMINAL EEPORTS, 1860-1907.
461
for the jury, and not a question of law for the Court, and th'!
Court could not, without usurping the functions of the jury,
withdraw it from their consideration.
As the Judge who presided at the trial, I think it right to say
that in my opinion there is no foundation whatever for any
suggestion of bias or prejudice on the part of the jury, and I have
heard with much satisfaction the concluding words of my brother
Real on that subject.
Conviction affirmed.
SoUcitors for the Crown : Morris & Fletcher.
SoUcitors for the prisoners : McGrath dh O'Neill.
R. V. Patrick
Kbnniff and
James Kbnnipf,
Griffith C.J.
[Full Court.]
R. V. MALONE.
[1903 S.R.Q. 140.]
Criminal law — Bail — Application for admission of prisoner to —
Discretion — Judicature Act (40 Vic, No. 6), s. 10 — The
Criminal Code, s. 555.
Whether s. 10 of The Judicature Act gives an appeal from an order by a Judge
granting or refusing an application for admission to bail, qucere.
In either view, the right of a person detained in custody to apply for bail to any
Judge, and if refused, to another Judge, is not interfered with by that section.
Summons kbfeeked.
John Malone was committed for trial to the Circuit Court at
Toowoomba on a charge of robbery, bail being allowed. He was
tried before Cooper J. on 9th April, 1903, when the jury, being
unable to agree as to the verdict to be given, were discharged,
and the trial adjourned to the next sittings of the Circuit Court
at Toowoomba, fixed for 9th September, 1903. An application
for bail was made on behalf of the prisoner at the close of the
trial, and renewed subsequently at Brisbane, on 17th April, 1903,
but was refused by Cooper J. On 24th April, 1903, a similar
appUcation was made on summons to Grifiith C.J., who, enter-
taining some doubt whether he had jurisdiction to hear the
appUcation, referred the matter to the Full Court.
Groom and 0' Sullivan, for the prisoner : The learned Chief
Justice had jurisdiction to hear the application. Section 555
1903.
Sth May.
Griffith G.J.
Cooper J.
Real J.
462 QUEENSLAND JUSTICE OE THE PEACE.
E. V. Malone. of The Criminal Code* empowers the Supreme Court or a Judge
thereof to admit to bail, whether bail has been refused or not. The
wording is very wide, and enables a prisoner to make appUcation
to one Judge after another. In R. v. Fraser and Jacobs (1892,
13 N.S.W.L.R. (L.) 160), Barley C.J. said (p. 153) : " This
appHcation is not in the nature of an appeal from the Judge,
but is an entirely independent application. As Mr. Wise' has
pointed out, a separate application might have been niade to
each Judge of the Supreme Court, one after the other." The
reference was to a passage in Lord Herschell'g judgment in Cox
V. Hakes (1890, 15 A.C. 506), in which, dealing with the mode in
which courts administer the law in relation to a writ of habeas
corpus, His Lordship said (p. 527) : " It was always open to an
applicant for it if defeated in one Court, at once to renew his
application to another. No Court was bound by the view taken
by any other, or felt itself obliged to -follow the law laid down
by it. Each Court exercised its independent judgment upon the
case, and determined for itself whether the return to the ■«Tit
established that the detention of the applicant was in accordance
with the law. A person detained in custody might thus proceed
from Court to Court until he obtained his liberty." The appHca-
tion for bail is in the nature of proceedings for a writ of habeas
corpus, the old practice being to apply for a rule nisi to admit to
bail.
A right of appeal exists from the order refusing bail. The
Judicature Act, s. 10,^ The Queen v. Foote (1883, 10 Q.B.D. 378),
Cox V. Hakes (1890, 15 A.C. 506), per Lord Halsbury L.C. at p.
519.
If s. 10 of The Judicature Act gives a right of appeal, the right
of the prisoner to make application from Judge to Judge is not
interfered with.
Henchman, ioT the Crown, referred to R, v. Lord Baltimore
(1768, 4 Burr. 2179).
Griffith c J. Griffith 'C.J. :' We think that, assuming that s. 10 of The
Judicature Act gives an appeal to the Full Court from an order
* The Criminal Code, s. 555. — The Supreme Court or a Judge thereof may
.admit to bail any person who has been committed for trial, Or is in custody,
upon a charge of an indictable offence, whether bail has been refused or not,
or may reduce the bail of any such person to whom bail has been granted.
t 40 Vic, No. 6, s. 10.— An appeal shall lie to the Full Court from every order
made- by a Judge In Court or Chambers, except orders made in the exercise of such
discretion as aforesaid.
CBIMINAL REPORTS, 1860-1907.
of a Judge granting or refusing bail, still the existence of that right
does not interfere with the independent right of a person who is
do:ained in custody to apply for bail to a Judge, and if refused
by one Judge, to apply to another. The application for bail
by summons is in substitution for the old mode of making applica-
tion for habeas corpus, and the Courts in England, in administering
the law in relation to that writ, have always held that an applicant
for a writ may go to one Court after another, and that no Court
was bound by the view taken by any other. We do not th.ink
that the right to apply to each of the Judges in succession has
been altered by s. 10 of The Judicature Act. The Criminal Code,
s. 555, appears to recognise the same principle.
Groom renewed the appUcation for bail. The principles on which
the Court acts are stated in In re Robinson (1854, 23 L.J.Q.B. 286),
The Queen v. James (1897, 7 Q.L.J. 148), Reg. v. Rose (1898,
67 L.J. Q.B. 289), a.nd The Queen v. Vos (1894, 7 Q.L.J. (N.C.) 74).
Griffith C.J. : The general rule which governs cases of this
kind has been laid down in In re Robinson, (1854, 23 L.J. Q.B. 286),
and the tests to be applied have been discussed in previous cases
in this Court. The only question is as to the apphcation of those
general principles to the facts of this case. Without again entering
into a consideration of the principles, we think that under the
circumstances of this case we are justified in allowing bail.
Bail allowed.
Sohcitors for the prisoner : 0' Sullivan tb Scott.
Sohcitor for the Crown : The Crown Solicitor.
463
B. V. Malone.
Griffith C.J.
Griffith C.J.
R. V. CORBETT.
■ 1903 S.R.Q. 246..^Nt>te.— See R. v. Rody Hogan (3 Q.L.J. 143), ante p. 207;
R. V. Freeman (6 Q.L.J. 281); ante p. 300 ; R. v. Kuruwaru (10 Q.L.J. 139),
ante p. 372 ; 'R. v. Warton (1905 S.R.Q. 167), post.]
Criminal law— Manslaughter — Evidence — Admissibility of — Dying
declaration — Document in writing — Criminal responsibility —
Intoxication — The Criminal Code, ss. 27, 28.
The admissibility in evidence of statements made by a dying person which are
put in writing; does not depend upon the manner in which those statements are
reduced into -writing.
1903.
18th August-
Grifflth G.J.
464 QUEENSLAND JUSTICE OF THE PEACE.
E. r. CoRBETT. Djring declarations may be oral or in writing, and are not inadmiasible because
they are not in the actual words of the deceased.
When a man intentionally causes himself to become intoxicated, and while in
that condition commits a criminal act, he is criminally responsible.
Cbiminal Tbial.
The prisoner was indicted at the Criminal Sittings of the
Supreme Court on a charge of murder, which, during the hearing
of the case, was altered to one of manslaughter. The deceased
man, James Gillespie, was the husband of the hcensee of an
hotel at Nanango. About 7th June, the prisoner took up his
residence at the hotel, and indulged himself in a drinking bout.
On 10th June, his mind was muddled and confused with intoxi-
cating liquor, but during the day he continued drinking freely,
and undoubtedly was intoxicated when he went to his room
at 10.30 p.m. There he commenced unstrapping a swag, in
which was rolled a small rifle loaded and cocked. During this
time he made use of very obscene language, and the deceased,
intending to expostulate with him, went to the room. As the
deceased opened the door, a shot from the rifle struck him on the
collar-bone, and being deflected, entered the lung, causing hemorr-
hage, from which he died on the following morning. No direct
evidence was given explaining the cause of the explosion, but it
was clear that the prisoner had the rifle in his hand when GiQespie
was wounded by a shot fired from it. The prisoner in his evidence
stated that the rifle was loaded and cocked when he put it in the
swag, and although not able to tell why it had gone off, thought
the trigger must have caught in some part of the swag or of the
bedroom furniture. He had no intention of shooting at the
deceased, and was so intoxicated that he had no conception of
what he was doing at the time. At the trial, James Powers, the
Clerk of Petty Sessions at Nanango, was called as a witness for the
prosecution, and gave evidence as follows : —
" About 11 p.m. on 10th June I was summoned to the Royal
Hotel. I saw Joseph GiUespie there and took his depositions.
Dr. Row and others were present. I asked him if he thought
he was dying. He said he was sure he was. I then told him,
' It is possible I will want to get your dying deposition.' I
asked him again if he felt sure he was dying. He said, ' Yes,
I am done.' He appeared so bad that I feared that I would not
get the depositions from him. The prisoner was in the room
both before and after the depositions were taken. I read them
out to him. I administered an oath to Gillespie. I then put
CRIMINAL REPORTS, 1860-1907.
465
questions to him which he answered. I wrote down the facts as ^- ''■^o"'*'^''''-
he stated them as in ordinary depositions, and then read what I
had written over to him, and said ' Are those correct ? ' He
rephed ' Perfectly.' Then he signed them. The prisoner was
brought in, and I read the depositions to him, and I asked Gillespie
again if they were correct. He said, ' Perfectly.' "
In reply to the learned Judge witness said, " I am sure GiUespie
had no hope of living."
Evidence was also given that when Dr. Row arrived in attend-
ance, the wounded man was in a low state, and said, " It is all
up with me."
The following is a copy of the depositions taken : — " This
deponent on oath saith as follows : My name is Joseph Gillespie.
I am a grazier, and reside at the Royal Hotel, Nanango, and am
now lying on a bed there, and believe I am dying from a bullet
wound inflicted by a man whose name I don't know, but who has
been staying here two days, and the man whom the poHce brought
into my room just now is the man who inflicted the wound.
He shot me just as I opened the door of number six bedroom.
He had just been using obscene language, and I went to stop him.
The deposition just read to me is perfectly true, and I make the
statement fuUy believing I am now dying."
Kingsbury, for the Crown, tendered this document.
Feez, for the prisoner, objected on the grounds : (a) That there
was no evidence that Gillespie's case was hopeless, and (b) the
depositions were not Gillespie's declaration. In Archbold's
Criminal Pleading and Practice, 22nd Ed., p. 296, it is stated :
" In R. V. Mitchell (1892, 17 Cox 503), Cave J. held that a state-
ment which had been reduced into writing, must, to be admissible
as a dying declaration, be in the actual words of the deceased, and
if questions are put, the questions and answers must both be
given." The following cases were referred to : R. v. Smith
(1865, L. & C. 607 ; 34 L.J. (M.C.) 153), B. v. Mann (1885, 49
J.P. 743), R. V. Whitmarsh (1898, 62 J.P. 680, 711), Phipson on
Evidence, 2nd Ed., 300.
Kingsbury : It is no objection to the statement that it is made in
answer to questions put to the deceased and afterwards reduced to
writing. R. v. Fagent (1835, 7 C. & P. 238).
Griffith C.J., in admitting the document in evidence, said :
I am of opinion on the evidence that the deceased had a settled
Griffith C.J.
466
QUEENSLAND JUSTICE OF THE PEACE.
E. r. COEBETT.
Griffith C.J.
Griffith'C.J.
hopeless expectation of death. The other point seems to have
been considered as settled in England until the latest edition of
Archbold, where the passage reUed on by Mr. Feez occurs. A
dying declaration is admissible if it is made by a person while
under a belief that he is in a dying state. The fact that the
declaration is put into writing is not material to the question of
its admissibility as evidence. In one case I allowed oral evidence
to be given of what a dying person had said, a written record of
it being inadmissible for want of proof. In doing so I appUed the
principles set out in B. v. Smith (1865, L. & C. 607), a decision
of the Court of Crown Cases Reserved, although that case was
not cited, and I will follow that case now and admit the document.
At the close of the evidence,
Feez : This is a case of manslaughter by neghgence, in which a
material question is the degree of drunkenness. The prisoner is
excused from criminal responsibility if, owing to drink, his mind
was so disordered that he was not responsible for his actions.
Kingsbury : Drunkenness is no excuse unless the prisoner's
mind is disordered by intoxication caused without intention on his
part. Criminal Code, s. 28. Even if the deceased's death were
caused by accident, as the accident arose out of the prisoner's
negligence in having a weapon loaded and ready to discharge,
it is criminal negligence. It was his duty to use reasonable care
to prevent the danger. The Criminal Code, s. 289 ; R. v. Carr
(1837, 8 C. & P. 163), R. v. Edwards (1838, 8 C. & P. 611).
Geiftith C.J., in directing the jury in reference to the defence of
intoxication raised, said : If the discharging of the rifle which
caused Gillespie's death was a pure accident, the prisoner is not
responsible, whether he was intoxicated or not. If, however, the
deceased's death was not occasioned by accident, but by the hands
of the prisoner, it is your duty to find the prisoner guilty of man-
slaughter, unless you consider that he ought to be excused on the
ground of unsoundness of mind. It was suggested by counsel that
if the prisoner was so intoxicated that he did not know what
he was doing at the time, he is not criminally responsible for
Gillespie's death. That is not the law, and never was the law.
Drunkenness is never a defence unless it amounts to unsoundness
of mind. No one can escape liability merely because he is
intoxicated. If you come to the conclusion that the prisoner
was so intoxicated that his mind was absolutely disordered,
and he was thus deprived of capacity to understand what he
CRIMINAL EEPOETS, 1860-1907.
was doing, or of capacity to control his actions, or of capacity
to know that he ought not to do the act with which he is charged,
you may be able to find him not guilty on the ground of insanity.
But if he intentionally caused himself to become intoxicated,
that defence is not open to him. It is, however, a defence if
his mind was so disordered as to be unsound within the meaning
of s. 27 of the Criminal Code, and if this condition was caused
by intoxication which arose without any intention on his part.
The learned Chief Justice asked the jury, in the event of their
rejection of the defence of accident, to consider the following
questions : (i.) In your opinion, did the prisoner become intoxi-
cated without any intention on his part — i.e., under circum-
stances for which he could not be fairly held responsible ; and
(ii.) if so, do you find him not guilty on the ground of unsound-
ness of mind ?
The prisoner was convicted.
SoUcitor for the Crown : The Crown Solicitor.
Solicitors for the prisoner : McOrath & O^Neill.
467
K. V. COBBETT.
Griffith C.J.
[Full Court.]
liALL V. HUMPHREYS, Ex parte HUMPHREYS.
CARROLL V. HASZ, Ex parte HASZ.
11903 S.R.Q. 250.— Note.— See McNamara v. Jenkins (1906 Q.W.N. 47), post;
MoHoy V. HaUam (1903 S.R.Q. 282), post]
Criminal law — Cattle suspected to have been stolen — On reasonable
grounds — Evidence — Possession of skin or carcass — " Of the
animal so suspected to have been stolen " — The Criminal
Code, s. 446.
The offence created by s. 446 of The Criminal Code is sufficiently proved by
evidence showing possession by the accused person of part of the skin or carcass of
any of the animals named in the section, and showing that there are reasonable
grounds for suspecting such animal to have been stolen, and conviction should
follow in the absence of any satisfactory explanation by the accused person of the
manner of his possession.
It is not necessary that the suspicion of stealing should precede the finding in
his possession.
1903.
27lh, 29th July.
Griffith C.J.
Cooper J.
468 QUEENSLAND JUSTICE OF THE PEACE.
Ball v. OeDBKS NtSI TO QlTASH CoNVlOTIONS.
^Tlparu' These two cases, heard at the July sittings of the Full Court,
Htjmphbeys. involved the interpretation of s. 446 of The Criminal Code*^
Exl^aruHntz. ' and judgment was given in both at the conclusion of the argument
in the second case.
Ball v. Humpheeys, Ex parte Humphebys.
Nasmith was the manager of Mount Hutton station, a holding of
about eight hundred square miles in the Roma District. Part
of the holding had been resumed for selection, and the defendant
had taken up one of the selections. In March, 1903, Nasmith
was on the resumed portion of the run, and saw a red roan cow,,
about four years old, in good condition, ear-marked, and branded
with the registered mark and brand of the Mount Hutton station.
On 9th April, a labourer, in the employ of the defendant, left
the defendant's selection for Roma, in charge of a dray containing
twenty hides. On information received from the station, the
complainant, a police constable, obtained a search warrant on
13th April, which stated that hides branded MHI were, on or
about 6th April, 1903, feloniously stolen, and that the complainant
had reasonable cause to suspect they were concealed in the dray.
On the same day the warrant was executed, and in the dray
was found a red roan hide of a cow branded with the Mount
Hutton brand. A complaint was thereupon made under The
Criminal Code, s. 446, alleging that on or about 9th April, 1903, a
cow was suspected on reasonable grounds to have been stolen,
and that on 13th April the skin of the cow was found in the
possession of the defendant. The complaint was heard in the
Court of Petty Sessions at Roma. Evidence was given showing that
the hide came from a cow four or five years old, in good condition,
and that it had been taken off five or six weeks before the finding.
The colour was similar to that of the cow seen by Nasmith in
March. There was evidence to show that the animal from which
the skin came had not been bogged. The defendant gave evidence
that he had received permission from Nasmith to kill and skin
* The Criminal Code, s. 446. — When any horse, mare, gelding, ass, mule, camel,
bull, cow, ox, ram, ewe, wether, goat, or pig, or the young of any such animal,
is suspected, on reasonable grounds, to have been stolen, any person in whose
possession or custody the skin or carcass, or any part of the skin or carcass, of the
animal so suspected to have been stolen is found, is guilty of an offence, unless he
proves that he came lawfully by the thing in question ; and he is liable on summary
conviction to a fine of fifty pounds. It is a defence to a charge of the offence
defined in this section to prove that the accused person came lawfully by the
thing in question.
CEIMINAL REPOETS, 1860-1907.
469
oertain wild cattle running on the resumed portion of the run,
and to skin bogged cattle which had died. He admitted that the
skin had been taken from one of the Mount Hutton cows, but
pleaded that it had been done under this permission, and called
several witnesses to prove that the skin had been taken from an
animal seven or eight months before, in the winter time. The
•defendant was convicted and fined. A rule nisi for a quashing
order was granted by Cooper J., on the grounds that there was
no evidence to support the conviction, and that the finding was
against the evidence and unreasonable.
Lukin moved the order absolute. The cow was last seen in
March ; it was not known to be dead or even missing on 9th
April. No suspicion that it had been stolen existed at that time.
Nasmith did not see the hide until 19th April, when it was pro-
duced in Court. No suspicion that the animal from which the
hide was taken had been stolen could exist before 19th April,
and therefore none existed when the search warrant was issued,
or when the hide was found in the dray. The existence of the
suspicion must precede the finding. It cannot be said that any
suspicion existed in the mind of any person that the cow had been
stolen until the discovery of the hide.
[Griffith C.J. : Would it not be sufficient if the suspicion
existed on the date on which the complaint was made ?]
No ; to support a conviction under the section proof of sus-
picion antecedent to the finding must be given.
[Griffith C.J. : You are reading into the section the word
■" afterwards " between the words " is " and " found."]
It might be contended that the issue of the search warrant
and the execution was evidence of the existence of suspicion.
But, if that is any evidence, it is evidence only of a suspicion
that hides had been stolen. That is immaterial. There must be
suspicion that an animal had been stolen, that some particular
animal had been stolen ; and the identity of the skin, as part
of that particular beast suspected to have been stolen, must be
established. Ex parte McCarthy (1887, 4 W.N. (N.S.W.) 68),
Ex parte Tranter (1867, 7 S.C.R. (N.S.W.) 213), Ex parte Davis
<1897, 18 N.S.W.L.R. 39). The suspicion must be definite,
and exist in the mind of some person. There was no reasonable
suspicion in the constable's mind that an animal had been stolen ;
at most, he could only suspect that the hide had been stolen.
Ball v.
homphrkys,
Ex parte
Humphreys.
470 QUEENSLAND JUSTICE OF THE PEACE.
Ball v. If the defendant had taken these hides from a shed, how could it
E^pwHe^' fee said that there was any reasonable suspicion that an animal
HusirHiiEYs. had been stolen ?
[GrRiFOTTH C.J. : According to your contention, there must
exist a state of mind not later than the moment of finding.]
Yes ; a state of mind based on reasonable grounds. The com-
plainant must have reasonable suspicion at a time antecedent
to the finding.
[Griffith C.J. : Then no person could lay an information
under the section unless he investigated all the facts, and at the
hearing he would have to show his suspicion to have been reason-
able.]
The findings of fact were unreasonable, and are therefore subject
to review by this Court. Neighbour v. Moore (1892, 4 Q.L.J. 145,
at p. 149).
Kingsbury, for the Crown : In Ex parte McCarthy (1887,
4 W.N. (N.S.W.) 68), rehed on by the appellant, there was no
evidence that any animal had been stolen. It does not matter
when the suspicion arises. A general suspicion is all that is
necessary, and it may come into existence at any time before the
hearing. If it is necessary to prove not only that grounds of
suspicion exist, but that some particular person had a suspicion,
and that the grounds for having it were reasonable, the section
is unnecessary, for the facts to be proved would support a charge
of stealing. In fact, it would go further, for it would prove not
only that defendant was guilty of stealing, but that the complain-
ant knew it. The section, which imposes a smaller penalty
than that prescribed for the offence of stealing, is intended to
meet cases where, owing to difficulty of identification of the cattle
stolen, it would not be possible to prove the offence of steahng.
Lukin, in reply : If s. 446 has that construction the form
(No. 270) is incorrect.
C.A.V.
Solicitors for the defendant : Bouchard ds Holland, for W. G.
Mayne.
Sohcitor for the Crown : O. V. Hellicar, Crown Solicitor.
Caeroll v. Hasz, Ex parte Hasz.
In February, 1903, John Carroll sent a roan cow, with other
cattle, to a selector named Salmond, who placed them in one of
CRIMINAL REPORTS, 1860-1907. 471
his paddocks. At the end of March they were missed, and on Cabrollv. Hasz,
... 1 1 J ,, , , . , , . . Ex parte Sisz.
exaramation no broken tences or other means by which they might
have escaped were discovered. During the search for the beasts,
cattle tracks were discovered about three miles from the paddock
leading to the defendant's selection. A search warrant was
issued, under which two constables searched the defendant's
homestead, where, in the meat house, they found a portion of
the carcass of a cow, which had been salted only four or five days.
The defendant admitted having killed a cow a few days before,
and alleged that it was one of his own, which had been missing
during the drought, but had recently returned. He stated that
he had done away with the hide, and had boiled the head down
for the fowls. On being asked where the animal had been killed,
he pointed to a gaUows in the yard. On being examined no signs
of slaughter were observed, but, on the contrary, strong indications
that the gaUows had not been used for some considerable time.
Two small pieces of the hide, of a roan colour, were found near the
yard.
The defendant was charged before the Court of Petty Sessions
at Clermont, under s. 446 of The Criminal Code (supra),
with having portion of a carcass of a beast suspected on reason-
able grounds to have been stolen in his possession, and was
convicted. An order nisi to quash the conviction was granted
by Power J., on 5th June, 1903, on the following grounds : —
(i.) That there was no evidence that the cow referred to in the
charge was suspected on reasonable grounds to have been stolen ;
(ii.) That there was no evidence that the meat found in the
defendant's possession was part of the carcass of the said cow ;
and (iii.) that there was no evidence to support the conviction.
Power moved the order absolute. The statute dealing with this
class of offence previous to The Criminal Code was 17 Vic, No. 3,
s. 5, and the institution of proceedings under that section was the
issue of a search warrant, which was issued upon proof, on oath,
by any witness that there was reasonable cause to suspect that
part of any stolen cattle was concealed. In Ex parte Tranter
(1867, 7 S.C.R. (N.S.W.) 213), decided under a similar section,
it was held to be necessary to show that an animal had been stolen
by someone, and that there was reasonable ground for supposing
that the part found belonged to that animal. Generally the
evidence necessary to obtain a conviction under that section
would support a charge of cattle stealing, and, accordingly, in
472 QUEENSLAND JUSTICE OF THE PEACE.
Cabrollj). Hasz, New South Wales, The Criminal Law Amendment Act (46 Vic,
Ex parte Hasz. ^^^ ^^^^ ^^^ ^^^ ^gg^ (N.S.W.) was passed. But that section was
strictly construed, because it gave magistrates a power to act on
mere suspicion. Ex parte Davis, per Owen J. (1897, 18 N.S.W.L.R.
39). Therefore, under s. 5 of 17 Vic, No. 3, proof was required
that cattle had been stolen, and s. 446 of The Criminal Code
only alters the law enacted by 17 Vic, No. 3, to the extent that
reasonable suspicion that cattle had been stolen now is necessary,
where formerly proof was required. That point has not been
estabhshed in this case. Further, s. 446 of the Code is more
definite than the repealed section. In the latter the indefinite
" any " is used, whereas in the Code the words are " any part
of the skin or carcass of the animal so suspected to have been
stolen . . ." The definite article is used, and it is necessary
for the prosecution to prove that a portion of "the" animal^ —
that is, of the animal suspected on reasonable grounds to have
been stolen — is found. In this case it was not proved.
[Griffith C.J. : On that construction the particular animal
must be identified, and, consequently, where the skin and head
had been destroyed, no conviction could be obtained. He
referred to The Metropolitan Police Acts (2 and 3 Vic, c 47,
s. 66 ; 2 and 3 Vic, c 71, s. 24)*, and to Hadley v. Perks (1866,
L.R. 1 Q.B. 44), where Blackburn J. said (p. 458) : " But the
mischief intended to be met by ss. 66 and 24 was evidently that
of suspected goods being carried along the streets, as where there
is a bag of coffee, for instance, found on a man, and there is reason
to believe that it had been pilfered from some ship or warehouse,
but from which particular ship or warehouse it is difficult to
prove."]
That case is decided on a section far less definite in its wording
than s. 446 of the Code, where the suspicion on reasonable grounds
is used in a subjective rather than an objective sense. That
section requires that the suspicion must be reasonable, and
existing before the finding. Section 5 of 17 Vic, No. 3, points
to the same conclusion, for there, without proof of suspicion, a
search warrant was not issued. The old proceedings have not
been departed from, and an interpretation should be placed
on the section to keep it in line with the previously existing law.
* Under these sections a constable has power to stop any person who may be
reasonably suspected of having or conveying in any manner anything stolen,
and in the absence of an account to the satisfaction of the magistrate how he
came by the same, such person is to be deemed guilty of a misdemeanour,
CEIMINAL REPORTS, 1860-1907. 473
When a part of a particular animal suspected on reasonable Carboll ». Hasz,
1^7 , , . „ , , ^ . , -Ex parti Habz.
grounos to nave been stolen is found, the offence is complete ;
" is found " may be future or present, it cannot be interpreted
as implying past time ; the suspicion must be anterior to the
finding. It is either the result or the cause. If the cause, it
must precede ; but if the result of the finding, the section does not
apply, for the existence of suspicion is an ingredient of the offence.
Under s. 446 proof must be given that the particular animal
was stolen, or that reasonable suspicion of the stealing existed.
0' Sullivan, for the Crown : The obtaining of the search warrant
is proof of suspicion. This section is not directed against cattle
steahng or against the receiving of stolen property. Its object
is to deal with a class of cases where the means of identifi-cation
of the stolen cattle has been completely destroyed, so that a
conviction for larceny is not possible. No radical change from
the earlier enactment has been made by s. 446. Ex parte Tranter
(1867, 7 S.C.R. (N.S.W.) 213) is only an authority as to proof of
identity. Under the section the onus of proof is thrown on the
defendant to give a reasonable account of how he came by the
property. The offence is the being in possession of part of a beast
reasonably suspected to have been stolen without being able to
give a satisfactory explanation of how it was come by.
Lukin, for the complainant.
Geifhth C.J. : These two cases raise substantially the same Griffith C.J.
question, and we wUl deal with them together. It is a question
involving the interpretation of s. 446 of The Criminal Code, and is of
great importance in the administration of justice throughout the
whole of Queensland, as from the statement of counsel it appears
that a good deal of uncertainty exists concerning the meaning
of the section and what evidence is necessary to support a charge
made under it. The section, leaving out unnecessary words,
provides that when any animal of a specified kind is suspected
on reasonable grounds to have been stolen, any person in whose
possession or custody the skin or carcass, or any part of the skin
or carcass of the animal so suspected to have been stolen, is found,
is guilty of an offence, unless he proves that he came lawfully by
it. It was contended that it must be proved that the suspicion
of stealing must exist at a time which is not later than the moment
that the skin or carcass, or the thing in question, is found, that
the suspicion must exist concerning some particular animal, and
in the mind of some person, who may be named, and who had
Griffith C.J.
474 QUEENSLAND JUSTICE OP THE PEACE.
Ball J). reasonable grounds for entertaining that suspicion. I confess
^^par™' that I do not see any difficulty in construing the section. The
HuMPHBEYs. words " suspected on reasonable grounds " are capable of being
Ex parte Hasz. ' construed in two ways ; they may mean that facts exist which
would justify suspicion in the mind of anyone, or they may mean
the existence of facts which, in the mind of some individual,
give rise to a suspicion which is reasonable — that is, the words
may be used in an objective or subjective sense. I think that
they are used in the objective sense, and have an absolutely
impersonal meaning. The grounds of suspicion must exist and
be reasonable, and if that is established by the facts proved
at the hearing, it is sufficient so far as regards that part of the
section. As was suggested by my brother Cooper during the
argument, by a re-arrangement of the words of the section, so
as to read : " Any person in whose possession or custody the
skin or carcass of any of the animals specified is found, if reasonable
grounds exist for suspecting such animal to have been stolen, is
guilty of an offence," the meaning is made absolutely clear. Two
facts must necessarily be proved. It must be proved that an
animal was suspected on reasonable grounds to have been stolen,
and that the skin or carcass or some portion of the animal
was found in the possession or custody of the accused. Suspicion
must in fact exist, and must be reasonable. When those facts
are proved the second part of the section has application, and
makes it a good defence to the accused to show that he came
lawfully by the thing in question. This construction has been
given to an analogous section of a very similar law. In The
Metropolitan Police Act of 1839 (2 and 3 Vic, c. 71), s. 24, it is
enacted : " Every person who shall be brought before any of
the said Magistrates charged with having in his possession or
conveying in any manner anything which may be reasonably
suspected of being stolen or unlawfully obtained, and who shall
not give an account to the satisfaction of such Magistrate how
he came by the same, shall be deemed guilty of a misdemeanour."
That section received judicial interpretation in the case of Hadley
V. Perks (1866, L.R. 1 Q.B. 444), decided in the year 1866. The
point in that case was whether the section applied to the case of
possession in a house, but Blackburn J., a very learned Judge,
expressed his opinion of the section. He says, at p. 458 : " But
the mischief intended to be met by ss. 66 and 24 was evidently
that of suspected goods being carried along the streets ; as where
there is a bag of coffee, for instance, found on a man, and there is
CEIMINAL REPORTS, 1860-1907.
475
reason to believe that it has been pUfered from some ship or
warehouse, but from which particular ship or warehouse it is
difficult to prove. If a man is found carrying anything of this
kind along the street there is a summary power to arrest him
and to punish him." There he gave an impersonal meaning
to the words, and considered that it was not necessary that
suspicion need exist as to any particular place. I think this
section of the Code ought to be construed in the same way, that
it gives power to punish a person in whose possession the skin or
carcass of an animal is found, when reasonable grounds are proved
for suspecting that the animal has been stolen, without the
necessity of proving that the thing found is part of any particular
animal, or that the animal was the property of any particular
person. If identification of the thing found were necessary, the
section would practically be useless, for in most cases all means of
identification are destroyed.
In the first case, there was evidence giving rise to reasonable
suspicion that a roan cow with a particular brand had been stolen,
and a hide of that colour, having the brand, was found in the
defendant's possession, who gave an explanation of his possession
which was contradicted, and was not beHeved by the justices.
In the second case a quantity of the meat of a cow was found,
and the explanation given by the defendant in that case was
itseK sufficient to raise a strong suspicion that the animal from
which the meat had come had been stolen.
In both the cases a portion of an animal was found, reasonable
grounds for suspecting the animal to have been stolen were proved,
and the defendant in each case failed to prove that he came
lawfully by it. Both convictions will be affirmed.
Ball v.
HrMPHRETS,
Ex parte
Hdmphreys.
Carroll v. Hasz,
Ex parte Hasz.
Griffith C J.
Cooper J. concurred.
Convictions afflrmed.
Chambers, Bruce & McNah,
Solicitors for the complainant :
for Swanwick <fc Kavanagh.
Sohcitors for the defendant : Rees R. <fc Sydney Jones, for
Bisien cfc Mullen.
Solicitor for the Crown : G. V. Hellicar, Crown Solicitor.
Cooper J.
476
QUEENSLAND JUSTICE OF THE PEACE.
1903.
7th September.
Griffith G.J.
Cooper J.
Real J.
[Full Couet.]
AIRD V. SKELTON.
[1903 S.R.Q. 258.]
Justices — Discretion — Exercise of — Summary jurisdiction — Right of
accused to elect to be dealt with summarily or to be committed
for trial — The Criminal Code, s. 233.
When the jurisdiction of Justices is lawfully invoked on the hearing of a charge
of using a common betting house under s. 233 of The Oriminal Code, the Justices
have a discretion as to the manner in which the case should be dealt with, and
must exercise that discretion.
Case stated by Metropolitan Police Magistrates.
The complainant preferred a complaint against the defendant
under s. 233 of Th£ Criminal Code,* charging him with using a
certain allotment, situated at the corner of Cooksley and Ann
Streets, as a common betting house. On the conclusion of the
evidence of the complainant, it was contended on behalf of the
defendant that he had a right to elect whether he would be com-
mitted for trial or be dealt with summarily. The existence of
any such right was denied by counsel for the complainant. The
Magistrates were prepared to deal with the case summarily,
but were of opinion that the defendant had the right under s. 233
of The Criminal Code to elect whether he would be committed
for trial or would be dealt with summarily. They accordingly
committed him for trial ; and stated the following question of
law for the consideration of the Full Court: — "Whether we, the
said Police Magistrates and Justice of the Peace, were correct
in deciding that the respondent had the right under s. 233, subseo.
1, of The Criminal Code, to elect whether he should be committed
to take his trial or should be dealt with summarily." As a reason
for their decision, they stated that : " Having regard to the abso-
lute discretionary power vested in the Justices in connection with
the offence described in s. 184 of The Criminal Code, as contrasted
with the conditional discretion provided for in ss. 443 and 444
of the Code with reference to the offences described in s. 443,
they considered that in the case of an indictable offence also
* The Criminal Code, s. 233 : . . . . Any person who opens, keeps, or uses
a common betting house is guilty of a misdemeanour, and is liable to imprisonment
with hard labour for three years.
Or he may be summarily convicted before two Justices, in which case he is
liable to imprisonment, with hard labour for one year, and to a fine of five hundred
pounds . . .
CRIMINAL REPOETS, 1860-1907. 477
punishable summarily, the person charged was entitled to exercise ^^^^ "■ Skelton.
an option in the matter, unless the discretion as to the mode of
trial was specially and solely vested in the Justices."
O'Sullivan, for the complainant : The difficulty in this case
arises on the concluding words of s. 233 of The Criminal Code
(ante). There are many similar sections in the Code. In
s. 184, deahng with interference with telegraphs, the Justices
may direct the charge to be dealt with summarily. In s. 444,
which provides the procedure on summary conviction for steaUng
and hke indictable offences, the justices have a discretion which is
not to be exercised in certain cases. In the first there is an abso-
lute discretion, and the other a specially limited discretion, for
an option is expressly given. He also referred to ss. 450, 505,
508, to Chap. XXXI., ss. 335, 341, 342, and to s. 481. When the
jurisdiction of the justices is invoked under s. 233, they have a
discretion as to how they will deal with the case, and clearly
may exercise it. They did not exercise any discretion, and by
thinking they had no power to exercise their discretion they were
wrong in law. The contention in the Court below was that the
defendant had a right to be tried by a jury, but that is unfounded.
The Justices Act of 1886 (50 Vic, No. 17), Stone's Justices' Manual,
35th Ed., p. 41 ; Muir v. Hore (1877, 47 L.J. (M.C.) 17).
The defendant was not represented.
The judgment of the Court was deUvered by
Griffith C.J. : The defendant was charged before justices with Griffith C.J.
using a certain place as a common betting-house, an offence under
s. 233 of The Criminal Code. That section defines what is a
common betting-house, and enacts that any person who opens,
keeps, or uses a common betting-house is guilty of a misdemeanour,
and is liable to imprisonment. The section then proceeds, " or he
may be summarily convicted before two justices, in which case
he is Uable to imprisonment with hard labour for one year, or
to a fine of five hundred pounds." At the conclusion of the case
for the complainant, the defendant claimed to be entitled to have
the case tried before a jury, and the justices, considering that he
had that right, committed him to take his trial at the District
Court. We think that the jurisdiction of the justices having
been lawfully invoked, they were bound to deal with the case in
the manner prescribed by law. They are required by the section
to exercise their discretion in the matter on all the facts as to
478 QUEENSLAND JUSTICE OF THE PEACE.
AiBD V. Skrlton. whether the case should be summarily dealt with by them or sent
Griffith C.J. to a jury. They have power to commit the defendant for trial,
or not to do so ; but that discretionary power rests on their view
of the merits of the case, and not on any right or request of the
defendant to be tried by a jury. On the hearing of this complaint
they might have taken one of three courses. They could either
have dealt with the case summarily and convicted the defendant,
or dismissed the complaint, or, if they thought it was their duty,
sent the case to a jury. Thinking that the accused had a right
to be tried by a jury, they acted on that view, and clearly did not
exercise the discretion given by the section to deal with the case
on its merits. The case will be referred back to the justices,
who must use their own discretion concerning the manner in
which it should be dealt with.
SoUcitor for the appellant : G. V. HelUcar, Crown Solicitor,
[Full Court.]
MOLLOY V. HALLAM.
[1903 S.R.Q. 282.— Note.— See Ball v. Humphreys (1903 S.R.Q. 250), ante p. 467 ;
Maenamara v. Jenkins (1906 Q.W.N. 47, post).]
1903. Criminal law — Cattle suspected to have been stolen — Possession of
8th,9ihS^tember skin— Mens rea—The Criminal Code, ss. 23, 4A6— Grown—
Grifflth G.J. Prosecution — Quashing order — Costs — Against the Crown —
'sealJ^' Justices Act of 1886 (50 Vic, No. 17), ss. 209, 216, 226.
The word " possession " in s. 446 of The Criminal Code imports knowledge of
control over the thing possessed, and in order to prove possession, the evidence
must show possession, either actual or constructive, with the knowledge of the
person charged.
On appeal from Justices, either by way of quashing order or by special case
under The Justices Act of 1886, the Court has jurisdiction to award costs to or
against the Crown in all cases where the Crown exercises its right to appear on
the hearing of the appeal.
Appeal prom the Northern Judge.
The defendant was charged before the Police Magistrate at
CEIMINAL REPORTS, 1860-1907. 479
Cairns with an offence under s. 446 of The Criminal Code* of Mollotw.
having in his possession the skin of a cow, suspected on reasonable
grounds to have been stolen. The evidence given at the hearing
was, shortly, as follows : A. E. Earl carried on business as a
butcher at Mareeba under the name of Earl & Company. His
shop was in the township of Mareeba, and the slaughtering yards
were situated on Granite Creek, about a mile distant. The
yards were in charge of the slaughterman, Hogan, who had
custody of the hide-shed and the hides. The defendant was
employed by A. E. Earl in the capacity of book-keeper and
shopman, and, in the absence of his employer, acted as manager
of the butchering business, and had authority to draw cheques
on the business banking account for certain express purposes.
Earl lived at Cairns, and generally paid visits to the shop two or
three times during each w^eek. It was also the defendant's
• duty to send the notices of intention to slaughter cattle, and to
furnish returns of the cattle slaughtered to the Inspector of Cattle,
under the provisions of the Act to amend the Law for regulating
the Slaughtering of Cattle (14 Vic, No. 30). On 9th March,
1903, the inspector visited the shop and obtained from the defen-
dant the returns of cattle killed during February and up to 9th
March. On the same day he went to the slaughter yards with
John MoUoy, the complainant's son, and there, on examining the
hides, found one with complainant's brand, C4V, upon it. This
hide was not mentioned in the return furnished, and no return
had been made by Earl and Company of any cattle bearing the
C4V brand since 1st March, 1901. On discovering the hide
MoUoy claimed it as his father's property. The defendant was
sent for, and on being told of MoUoy's claim, said, " If you think
the hide is yours you had better take it." It was proved that the
skin was that from a cow belonging to the complainant. At the
trial, Earl tried unsuccessfully to prove that the animal had been
sold to him. The hide could have been put into the shed without
the knowledge of the defendant or even of the slaughterman;
no evidence was given that ib was there before the day on which
* The Criminal Code, s. 446 : When any horse, mare, gelding, ass, mule,
camel, bull, cow, ox, ram, ewe, wether, goat, or pig, or the young of any such
ammal is suspected, on reasonable grounds, to have been stolen, any person
in whose possession or custody the skin or carcass, or any part of the skin or
carcass, of the animal suspected to have been stolen, is found, is guilty of an
offence, unless he proves that he came lawfully by the thing in question ; and he is
liable on summary conviction to a fine of fifty pounds. It is a defence to a charge
of the offence defined in this section to prove that the accused person came law-
fully by the thing in question.
480
QUEENSLAND JUSTICE OF THE PEACE
MOLLOI V.
Hallam.
Chubb J.
it was found. At the time of finding, the defendant was attending
to the shop, and was not present, and there was no evidence to
show that he knew the hide was in the shed, or, in fact, that he
had any knowledge concerning either the cow or the hide. The
defendant was convicted and fined. An order nisi for a quashing
order was, on 12th June, 1903, granted by Chubb J. on the following
grounds : — (i.) That the conviction was against the evidence ;
(ii.) that the evidence did not show any reasonable grounds for
suspecting that the cow the skin of which was the subject of the
prosecution had. been stolen; (iii.) that there was no evidence
that the skin in question was in the possession of the appellant ;
(iv.) that if the skin was in the appellant's possession there was
no evidence of knowledge of such possession.
On 22nd July Macnaughton, for Hallam, moved the rule
absolute.
Jameson, for Molloy, showed cause.
Eoss for the Crown.
The following judgment was delivered on 7th August by
Chubb J. : I think the evidence justifies the finding of the Magis-
trate that there were reasonable grounds for suspecting the cow to
have been stolen, and that the skin found was the skin of the
animal. I am unable, however, to see any evidence that 'the
skin was found " in the possession or custody" of the appellant.
I am by no means convinced that the words in the section,
" found in the possession or custody," have the same meaning as
the term " have in possession " defined by the Code (s. 1), but
assuming that they do, the evidence is still not sufficient. The
skin was found in the hide shed of his employer's slaughter-yard,
over a mile from the appellant's dwelhng and from the shop
of which he was undoubtedly the manager. The slaughterman
hved at the slaughter-yard, and had the custody of the yard,
hide shed, and hides therein. Then, the skin was found at a
time when the appellant was not present, and there is nothing
to show that he knew anything about the cow or the skin.
This offence is analogous to that of receiving stolen property, and
posession in such a case is sufficient even if it is constructive.
R. V. Smith (1855, 24 L.J. (M.C.) 135), R. v. Miller (1853, 6 Cox
353). There is nothing to show that the slaughterman had
possession or custody of the hide for the appellant ; on the
contrary, he had it for their common employer. Earl & Co. Nor
CRIMINAL REPORTS, 1860-1907.
481
had the appellant control over the slaughterman in the sense
defined by the term "have in possession." Further, if the
slaughterman had such possession, he must be shown to have
had it with the knowledge of the appellant.
Possession imports knowledge [R. v. Wilmett (1848, 3 Cox 281),
B. v. Cohen (1858, 8 Cox 41)], and there is no evidence whatever
of knowledge, or from which it could be inferred. Power J., in
Grudgington v. Cooney (1902, St. R. Qd. 176) was of opinion,
that evidence of knowledge is necessary. I agree with him. And
under the repealed section which contained the old offence (17 Vic,
No. 3, s. 5), it is clear that knowledge was an essential element.
The words, " with his knowledge," are expressly stated. I do
not think the Legislature intended to alter the character of the
offence, although these words have been omitted from the Code.
Unless a mens rea is expressly or impliedly negatived, it must be
read into the statute. R. v. Twose (1879, 14 Cox 327), R. v.
Earvey (1871, L.R. 1 C.C.R. 284), Chisholm v. Doulton (1889,
22 Q.B.D. 736). I do not think, as was contended, that the
obligation on the party charged to show that he came lawfully
by the thing, expressly or impliedly negatives the element of
knowledge. I think the opposite is the construction, because a
man cannot show that he came lawfully by a thing of which he
has no knowledge. In this case, as the possession by the appellant
was not proved, nor with his knowledge, it was not incumbent
upon him to establish his innocence. In my opinion, the case
failed for want of evidence.
The rule must be made absolute to quash the conviction, with
costs against the respondent, and, failing payment by him,
against the Crown, who have come in to uphold the conviction.
From this judgment the complainant appealed to the Full Court
on the grounds : (1) That the learned Judge was wrong in deciding
that there was no evidence that the skin was in the possession
of the defendant ; (ii.) and in deciding that, if the skin were
in the possession of the appellant, there was no evidence of
knowledge of such possession.
An appeal on the same grounds was entered by the Crown.
Lilley, for the appellant MoUoy : The law as stated by the
learned Judge is wrong ; and even assuming that it is correct,
there is evidence to support the conviction. No evidence of
knowledge is necessary. The section makes the fact of having
possession an offence.
MOLLOY V.
Hallam.
Chubb J.
482 QUEENSLAND JUSTICE OP THE PEACE.
MoLLOYD. [Griffith C.J. : Section 23 of The Criminal Code* applies.
' It does not seem to have been referred to in the Court below.]
That section is in this particular offence overridden by s. 446.
[Geiffith C.J. : No ; it has general appUcation to all our
criminal laws.]
Manual possession is not necessary. R. v. Smith (1855, 24
L.J. (M.C.) 135). It is sufficient, as proved in this case, that the
hide was under the control of the defendant. As manager, he
was responsible for the cattle. He exercised control over the
shop, the yards, and generally over everything connected with
the business. The hide could not have been in the shed inno-
cently, and the failure to include the hide in the returns, and the
attempt to stop the prosecution and to estabUsh a sale, show
knowledge.
[Real J. : That was done by the employer ; his account was
false ; it shows no knowledge by the defendant.]
There was evidence on which the Magistrates could find as
they have done. Possession in s. 446 is different from the mere
physical possession, and means having under control.
[Gbiffith C.J. : It does in this Code when used in conjunction
with the word " have."]
The skin was found in his possession, and he is, prima facie,
liable ; mens rea has no application. The hide was reasonably
suspected to have been stolen, and, on being found in the defend-
ant's possession, the onus of proving that he came by it innocently
is on him.
Macgregor, for the Crown : The definition in s. 1 of the Code of
" have in possession " can be apphed to the words " in possession "
in s. 446, as the word " have " is really unnecessary. Therefore,
constructive possession is sufficient on a charge under s. 446,
and there is evidence here of constructive possession. Generally,
I adopt the argument of Mr. Lilley in support of the finding of
the Magistrate. Further, this is a criminal prosecution, and the
learned Judge should not have given costs against the Crown.
It is doubtful also whether he could do so.
* The Criminal Code, s. 23 : Subject to the express provision of this Code
relating to negUgent acts and omissions, a person is not criminally responsible
for an act or omission which occurs independently of the exercise of his ■will or for
f;n event which occurs by accident.
CRIMINAL REPORTS, 1860-1907. 483
In the unavoidable absence of Macgregor on the following day, Molloy v.
Lilky, by permission of the Court, continued the argument on
the question of costs being awarded for or against the Crown :
The practice of this Court is set out in Bernecker v. White (1890,
4 Q.L.J. 1), Britcher v. Williams (1893, 5 Q.L.J. 39), per Griffith
C.J. in B. V. Ah Lin (1897, 8 Q.L.J. 1) ; but it appears that tho
practice ought to be reviewed. It had its origin probably in tho
late Mr. Justice Harding's view of s. 58 of The Supreme Court
Act of 1867 (31 Vic, No. 23). At common law it is clear that the
Court had no jurisdiction to award costs against the Crown,
and where an Act of Parliament gives the Court power to award
costs, that does not affect the common law doctrine, unless the
statute expressly mentions that it appUes to the Crown. This
case comes before the Court under s. 209 of The Justices Act of
1886, the costs of which are dealt with by s. 216, under which no
express power is given to grant costs against the Crown. It would
appear, however, that in proceedings under s. 226 — an entirely
different method of appeal from justices — costs may be given.
If the. Attorney-General, under s. 229, required a case to be
stated, he would come under the words " any party " ; but in all
cases where the defendant moves this Court, and the Attorney-
General does not come in, no costs can be given against the Crown.
[Real J. : The practice has long been followed here that no
costs are received or paid where the Crown is the prosecutor.]
[Gbifeith C.J. : Undoubtedly, that rule has often been applied.
In Powell's Case (1894, 6 Q.L.J. 36), I expressed an opjnion, but
my brothers Cooper and Real refrained from doing so.]
The point does not seem to have been expressly argued and
decided. In Moore v. Smith (1859, 1 El. & El. 597), a case
decided under 20 and 21 Vic, c 43, from which ss. 226 et seq.
were taken, it was held that the Court, on confirming the con-
viction, had jurisdiction under s. 6 of that Statute to award costs
to the respondent, as the Statute includes cases in which the Crown
is, directly or indirectly, a party ; but that case does not seem
to be consistent with the authorities. He referred to The King
V. Archbishop of Canterbury ([1902] 2 K.B. 503), The Queen v.
Beadle (1857, 7 El. & B. 492), Lord Advocate v. Lord Dunglas
(1842, 9 CI. & F. 173), Smith v. Earl of Stair (1859, 2 H.L.C. 807),
King v. Miles (1797, 7 T.R. 367), In re Mills' Estate (1886, 34
Ch.D. 24), In re Vernon's Estate (1901, 1 Ch. (Ir. R.) 1), Secretary
of Stale for War v. Booth (1901, Q.B. (Ir.) 692).
484
QUEENSLAND JUSTICE OF THE PEACE.
MOLLOY V.
Hallam.
Griffith C.J.
[Real J. referred to Thomas v. Pritchard ([1903] 1 K.B. 209).]
There it was held that the Crown could get costs in the Court
below, and so, on appeal, the order could be made in this Court.
If the right exists at all it is mutual. Moore v. Smkh (1859,
1 El. & El. 597) covered any case where the Attorney-General is
moving, and in these cases the Crown may be made to pay costs ;
but this being a proceeding under s. 209, a proceeding a;t the
suit of a subject, no express power is given, and the Court has no
power to make an order for costs. The case is governed by The
Queen v. Bea(Me (1857, 7 El. & B. 492).
Feez for the defendant.
The judgment of the Court was delivered by
Griffith C.J. : This is an appeal from a decision of Chubb J.,
quashing a conviction of the defendant by a Police Magistrate
for having in his possession the hide of an animal suspected on
reasonable grounds to have been stolen, and of which the defend-
ant had not proved that he came by it lawfully. The learned
Judge was of opinion that, on the evidence, the Magistrate was-
right in holding that there were reasonable grounds for suspecting
that the animal had been stolen, but was wrong in considering
that there was evidence that the skin was found in the possession
or custody of the defendant. He held that the sTrin was not
found in the possession of the defendant at all, and if it was,
there was nothing to show that he had any knowledge of the
possession. According to the evidence in the case, the defendant
was the manager of a butcher's shop in Mareeba. The slaughter-
yard in connection with it was about one and a-half miles out of
the town. There the beasts were slaughtered, and the meat when
dressed was sent into the shop for sale. The defendant's duties
generally kept him at the shop, but occasionally he visited the
yard, and he had, to some extent, control over the slaughtering.
On 9th March the hide in question was found in a shed at the
slaughter-yard among other hides, and no evidence was given
to prove that the hide was there on the previous day. The
defendant himself was not present at the time, and, according
to the evidence, he had not been there for several days. How
can it be said that the hide was in the possession or custody of
the defendant ? If it had been shown that, although he Uved in
Mareeba, he exercised a general supervision over aU that went on
at the yard, and that practically everything there was in his
custody, that would have been some evidence of possession by
CRIMINAL REPORTS, 1860-1907.
485
iim ; but on the evidence, there was nothing to prove that it
was in his possession, or in the possession of anyone else, unless
it could he said to be in the possession of the slaughterman, or
that his possession constituted possession by the defendant.
Chubb J. thought that there was no evidence of the hide being
in the defendant's possession to his knowledge, and held that a,
mens rea was necessary. Section 23 of The Criminal Code pro-
vides that a person is not criminally responsible for anything
that occurs independently of his will. A man cannot therefore
be convicted of having possession of property supposed to be
stolen if he knows nothing about the possession. The conviction,
therefore, was rightly quashed, and the appeal must be dis-
missed. I do not wish to be misunderstood in this respect.
The foundation of a prosecution for this offence is the finding
of the thing. in the possession of the defendant. It must be
.shown that it is in his possession with his knowledge ; and when
once the thing is found in his possession in that sense, and it is
shown that there are reasonable grounds for suspecting it to have
been stolen, then he is called upon to account for the possession.
With regard to costs, the Crown at the hearing of the argument
before Chubb J. appeared by separate counsel, and the learned
Judge, on making the order absolute to quash the conviction,
ordered the prosecutor to pay the costs, and if the defendant
failed to recover them from him, ordered the costs to be paid by
the Crown. This is a somewhat unusual order, but if it is within
the power of the learned Judge to make it, we cannot review his
discretion in the matter. The question of his jurisdiction to
make the order has been raised and argued. There is no doubt
the general rule at common law was that the Crown never paid
or received eosts, and if the Crown is entitled to costs, or is liable
to pay them, the right is mutual, and must exist by virtue of some
statute. In the cases of Moore v. Smith (1859, 1 El. & El. 597)
and Thomas v. Pritchard ([1903] 1 K.B. 209), it was held, on
•appeal from justices in the form of appeal by special case, that
the Court had power to order the Crown to pay costs. That form
of appeal is given in England by particular statutes (The Sum-
mary Jurisdiction Acts), and is the only mode of appeal to a
superior Court. By The Justices Act of 1886, two modes of
■appeal are created — the appeal by special case under s. 226, and
the alternative appeal by quashing order under s. 209. If the
Crown, on taking part in an appeal from justices by special case,
is liable to pay costs, we see no reason why, on taking part in an
MOLLOY I'.
Hallam.
Griffith C.J.
486
QUEENSLAND JUSTICE OP THE PEACE.
MOLLOT V.
Hallam.
Griffith C.J.
appeal from justices in the other form, the Crown is not equally
liable, provided it was optional on the part of the Crown to take
part in the appeal or not. In these proceedings the Crown was
separately represented. It was purely optional on the part of
the Crown, and I see no reason for thinking that the same rule
of costs does not apply. Chubb J., therefore, had jurisdiction to
grant costs, and the appeal of the Crown on that question must
be dismissed. However, we do not think that the Crown should
pay the costs of this appeal. The appeal of the complainant is
dismissed, with costs.
Appeal dismissed, with costs against the
complainant. No costs of the appeal
allowed against the Crown.
Solicitors for the appellant : Unmack, Nicol Robinson & Fox,
for Lilley, Cairns.
Solicitors for the respondent : Roberts <fe Roberts, for Zahd,
Cairns.
Solicitor for the Crown : G. V. Hellicar, Crown Solicitor.
1903.
2nd September.
Gnffith G.J.
Cooper J.
Bcal J.
[Full Couet.]
REX V. LANNON.
[1903 S.R.Q. 315.]
Criminal law — Gaming — Betting house — Place used for betting —
Vacant allotment outside fence of racecourse — Particular spot
for payment of debts — The Criminal Code, s. 233.
The defendant on 25th May entered on an allotment of land adjoining the Ascot;
Eaoecourse, and divided therefrom by a galvanised iron fence abont eight feet high.
The land was otherwise unenclosed, and was waste land partly covered with ti-tree
scrub. From 1 p.m. till 5 p.m. on that day he called the odds, and made bets-
with backers of the horses running on the adjoining Racecourse. At a distance of
two or three feet from the fence a blackboard was erected, on frhich the names of
the horses starting in each race were written, sometimes by the defendant, and
sometimes by another person. After each race the defendant took up. a position
by the blackboard, where he paid those backers who had made winning bets with
him. The races could not be seen by persons standing on the ground of the allot-
ment, and the owner thereof had not given any authority to the defendant to use
the land other than the authority which might be inferred from the land being
unenclosed.
CEIMINAL REPORTS, 1860-1907. 487
The defendant deposed that the blackboard was put up against his wish, and Bex v. Lannon.
that, although he paid the bets near the blackboard, some of them were not made
there, but in different parts of the allotment, and occasionally beyond its limits.
Hdd, on these facts, that the defendant had used the allotment as a, common
betting house within the meaning of s. 233 of The Criminal Code.
Cbown Case Reserved under s. 668 of The Criminal Code.
The defendant was indicted at the Brisbane Criminal Sittings
on 21st August, 1903, held before Griffith C.J., for using a piece
of land, known as allotment 45 of resubdivision A of subdivision
M of allotment 16 of portion 2, Parish of Toombul, as a common
betting house.
The following facts, which were not controverted, appeared
from the evidence : —
The allotment in question adjoins the Ascot Racecourse, at
Eagle Farm, near Brisbane, from which it is divided by a gal-
vanised iron fence eight or nine feet in height. It is otherwise
unenclosed, being waste land with ti-tree scrub upon it. It is
commonly known as " The Outer."
On the 25th of May, 1903, a race meeting was held at Ascot.
On that day the defendant carried on the business of a book-
maker on the allotment in the following manner : — A blackboard,
about two feet in length and one foot in width, was erected on
the allotment at a distance of two or three feet from the fence.
Before the starting of each race the names of the horses intended to
start were written on the board, sometimes by defendant and
sometimes by another person, and at the conclusion of the race
they were removed by defendant or the other person. The
defendant, standing close to the board, and being equipped in
the usual manner of bookmakers with a bag bearing his name
and slung over his shoulder, called out the odds which he was
wUUng to give against each horse starting in the race. A con-
siderable number of persons were congregated on the allotment
and the adjoining land. When any person offered to back a
horse, the defendant received his stake, dropped it into his bag,
and gave the bettor a ticket bearing his (the defendant's) name,
the name of the horse, and a memorandum of the amount which
the bettor would be entitled to receive if the horse backed by
him should be the winner of the race. After each race the defend-
ant, standing by the blackboard, paid the holders of the tickets
containing the name of the winning horse the amounts of the bets
mentioned on them. He continued this course of action from
1 p.m. tin 5 p.m., during which time several races were run.
488 QUEENSLAND JUSTICE OF THE PEACE.
Kex !;. Lankon. ^nd he made bets with any one who accepted the odds offered
by him.
Another person, named Skelton, stood at the other side of the
blackboard, and carried on the business of betting in the same
manner. No other bookmakers were betting in the neighbour-
hood. The defendant was assisted by a clerk, who recorded
in a book the bets made by defendant.
The races could not be seen by persons standing on the ground
of the allotment. A messenger from time to time brought
information to defendant and to Skelton of the names of the
intended starters, and of the names of the winners of the races.
The owner of the allotment had not given any authority to
defendant to use the land, other than such authority (if any) as
might be inferred from the land being open and unenclosed,
and of the description above stated. The defendant, who was
undefended, deposed that the blackboard was put up by Skelton
against his wish.
He further deposed that he also made bets in other parts of the
allotment at some distance from the blackboard, and occasionally
at points beyond the limits of the allotment.
The learned Chief Justice directed the jury that if they beheved
that the defendant, either alone or in concert with Skelton,
established his headqua,rters for the day at the blackboard,
and there carried on the business of betting, it was immaterial
that he also made bets away from the blackboard, and that if
they beheved the evidence as to the manner in which defendant
carried on that business they should convict him.
The jury found the defendant guilty, and a fine of £10 was
imposed, but execution stayed, and the following questions
reserved for the consideration of the Full Court : —
1. Was the direction correct in point of law ?
2. Was there any evidence upon which the jury could
properly convict ?
The defendant, in person : The blackboard was only used for
the purpose of giving information to the pubUc. Not only did I
not erect it, but I objected to it being placed there ; and my only
reason for being near it was that the majority of people were at
that place.
Kingsbury, for the Crown : This case is very similar to that of
Powell V. The Kempton Park Racecourse Co., Ltd. ([1899] A.C.
143, at p. 165). The case most in favour of the accused is DoggeU
V. Gatterns (1865, 19 C.B.N.S. 765), where it was decided under
CEIMINAL REPORTS, 1860-1907. 489
16 and 17 Vic, c. 119, s. 1, that the use of a spot under a tree Bex v. Lannon.
for receiving and paying bets was not a " place." An attempt to
distinguish that case was made by Hawkins J. in Beg. v. Preedy
(1888, 17 Cox C.C. 433, at p. 440). In Brown v. Patch ([1899]
1 Q.B. 892), a bookmaker on enclosed land, to which aU persons
were admitted without payment, erected a board on cane supports,
on which his name was painted, and stood on a box placed
close by, where he made and paid bets. Darling J., at p. 897,
pointed out that he had localised his business there for the time,
and said : " It is not necessary that the place should be roofed,
or have exact limits and fixed boundaries ; " and Channel! J.,
at p. 899, said : " In each case the facts must be looked at to
see whether the bamboo stage or the umbrella, or whatever
it is that the man has got, is being used by him merely to indicate
that he is prepared to bet with anybody who will bet mth him,
or whether he is using it to indicate that there is a place at which
the business of betting is carried on by him, and to which, there-
fore, people may go for the purpose of betting with him." Even
since the decision in Pawell v. The Kem'pton Park Racecourse Go,
Ltd. ([1899] A.C. 143), Shaw v. Morley (1868, L.R. 3 Ex. 137),
Bows V. Fenwick (1874, L.R. 9 C.P. 339), Liddell v. Lofthouse
{[1896] 1 Q.B. 295) are good law. In the last case, the place used
by the bookmaker was an angle formed by hoardings ; it was held
to be a " jdace " ; and Kay L.J. said that it seemed to him that
if a man used the ground at the foot of the statue in Charing
Cross for the purpose of habitually betting with persons resorting
to him there it would be a " place," although the space was
entirely undefined. Under the EngHsh statute the cases deaUng
with owners of places, and those dealing with bookmakers who
onlyT'resort there, differ somewhat. Henretty v. Hart (1885,
23 Scottish Law Reporter, 269), Tromans v. Hodkinson ([1903]
1 K.B. 30), Belton v. Busby ([1899] 2 Q.B. 380). In Gallaway
v. Maries (1881 8 Q.B.D. 275), at a race meeting in a private
park, the bookmaker stood in a railed enclosure on a box, which
was not attached to the ground, and made bets ; it was held
that the box defined a spot, and Grove J. went so far as to say :
" I do not decide whether a person standing on a carriage step,
or in a circle where the turf was cut away, or where a Httle heap
of stones was put down during the races, would be within the Act
if he offered to bet there. But I am far from saying he would
not be so." He referred also to Bex v. Deamlle ([1903] 1 K.B. 468),
O'Donndl v. O'Brien (1899, 24 V. L.R. 673), Bell v. Bdl (1901,
490
QUEENSLAND JUSTICE OP THE PEACE.
Bex v. Lannon. 17 N.S.W. (W.N.) 177), Potter v. Thomas (1898, 19 N.S.W.L.R.
170).
[Geiffith C.J. : In the latter case Darley C.J. considered
Doggett v. Catterns (1865, 19 C.B.N.S. 765).]
Halsbury L.C. also remarked on that case in Powell v. The
Kew/pton Park Racecourse Co., Ltd. ([1899] A.C. 143).
Griflath C.J. Geiffith C.J. : The defendant was charged under s. 233 of The
Criminal Code, with using a place described in the information as a
common betting-house. The offence under that section consists in
the use of a place for the purpose of bets being made in it between
persons resorting there. It has been settled under a similar
section in England that the practice of betting and the making of
bets is not itself illegal. The section of The Criminal Code does not
strike at the practice of betting, but against the business of
keeping a place which is a resort for persons who desire to bet
with the man who keeps the place. Betting itself is not illegal,
but keeping a place as a place of resort for betting is illegal. A
great number of cases on the point have been decided in England,
but the leading case now is that of Powell v. The Kempton Park
Racecourse Co. ([1899] A.C. 143). In the present instance, a
black-board was erected on an easel on a piece of unoccupied
land outside the racecourse at Eagle Farm, and a considerable
number of people collected there. The place was called " the
outer." I suppose that means the outer ring or outer betting
ring. The defendant himself did not put up the black-board,
and in his evidence he said that he objected to its erection, but
being there he used it for the purpose of writing upon it the names
of the horses that were starting in the different races. Sometimes
he wrote them, and sometimes someone else. At the other side
of the easel was a man named Skelton, who did similarly. Before
the race the defendant used to call out the odds he was prepared
to give on each horse ; and any person wanting to bet with him
could come to him there and deposit his stake. After the race
he stood in the same place and paid the winners. On these facts
the question is, Did the defendant use that place as a place for
the purpose of bets being made there with him by persons resort-
ing to the place ? Looking at the facts apart from the authorities,
obviously he did. I think that is a sound test to apply, unless
we are compelled by any authority to come to a contrary con-
clusion. Any ordinary person would say that the defendant used
the place for the purpose of carrying on the business of betting.
CRIMINAL REPORTS, 1860-1907.
491
There is no doubt he used the black-board and easel as something
to indicate that it was a place at which the business of betting
was carried on, and to which people could go for the purpose
of making bets with him. He was therefore using the place for
the purpose of betting. The case is on the extreme border line,
but I feel compelled to come to the conclusion that the defendant
had crossed the line. The conviction, therefore, must be affirmed.
Cooper and Real JJ. concurred.
Conviction affirmed.
Solicitor for the Crown : The Crown Solicitor.
Bex v. Lannon.
Griffith C.J.
Cooper J.
Beal J.
[In Chambbks.]
R. V. ARROWSMITH.
[1903 Q.W.N. 31.— Note.— See R. v. Forrest (1907^Q.W.N. 22) post.]
Criminal law — Procedure — Change of venue — Good cause — The
Criminal Code, s. 559.
Summons.
This was an application to change the place of trial.
The accused was committed at Gladstone on 28th February,
to take his trial upon a charge of horse-stealing, before the Dis-
trict Court at Gladstone, to be held on 15th June, 1903. The
alleged offence was committed in the Gladstone district. Bail
was allowed in the sum of £50, and two sureties of £50 each,
but the prisoner, being unable to obtain sureties, was in prison
at Rockhampton awaiting his trial.
Pattison (solicitor), for the prisoner: A more speedy trial is
desired. The accused will be imprisoned for four months, whilst
the Sittmgs of the District Court, and of the Supreme Court will
in the meantime be held in Rockhampton. The witnesses are
mostly resident in or. near Rockhampton, where the trial could be
conveniently held.
Boland (solicitor) for the Crown : Change of venue is objected
to on the grounds : (1) That the accused has been properly com-
mitted to the District Court at Gladstone ; (2) that he should be
tried by the Court and jury of the district where it is alleged the
offence was committed.
1903.
6th April.
Power J.
492 QUEENSLAND JUSTICE OP THE PEACE.
E. V. Aerowbmith Poweb J. : The accused h,as been properly committed, and
Power J. the Crown opposes the application. I do not see sufficient ground
for ordering a change of venue, particularly as bail has been
allowed.
Solicitors : Bees B. d: Sydney Jones ; J. Pattison.
E.A.D.
[BUNDABEEG CIRCUIT CoURT.]
R. V. DRAPER.
[1903 Q.W.N. 32.]
1903. Criminal law — Wilful murder — Aiding suicide — Aiding, counselling
23rd July. or procuring the com,mission of an offence — The Criminal
RmTj. Code, ss. 7 (c), {d), 301, 311, 576.
A CONVICTION under s. 311 of The Criminal Code cannot be
obtained on an indictment for wilful murder under s. 3G1 \The
Criminal Code, s. 7 (c), {d), s. 576].
Counsel: Watson; Kingsbury.
SoHcitors : Thorburn ; Crown Solicitor.
1903.
Slst July.
Griffith V.J.
Cooper J.
Heal J.
[Full Coubt.]
REX V. LEANE.
[1903 Q.W.N. 53J
Criminal law- — Stealing — Taking or converting a thing capable of
being stolen — Moving or actually dealing — Physical axt^-
Criminal Code, s. 391 (6).
Grown Case Reserved.
The prisoner was indicted on an information for steaUng three
heifers, the property of Thomas McCarrol. A second count
charged him with receiving the cattle knowing them to have been
stolen. The case was heard before Mr. D.C.J. Paul, and evidence
given at the trial proved that Thomas McCarrol, a selector at
Blackbutt, owned three unbranded heifers. They were very
quiet, and had been reared on the bucket, and fed and tended
CRIMINAL REPORTS, 1860-1907. 493
from the time they were calves. They were known by name, and ^^^^ "• I'Banb
were driven daily with other cattle belonging to McCarroU to
water. Only part of the selection was fenced, and cattle could
stray from the selection. On 9th December, 1902, while McCarrol
was absent from his home, the man in charge missed fifteen head
of cattle, including the three heifers, and although search was
made, he found no trace of them. Fourteen days later the heifers
and some of the other cattle were seen grazing on the Emu Creek
Reserve, about fourteen miles from McCarrol's selection. In
February, and again in April, the three heifers were seen by
different people in the prisoner's paddock, where possession was
taken of them on 23rd April by the police. They were subse-
quently identified by several persons as the property of McCarrol.
The prisoner claimed them as his own, and explained the fact
that they were not branded by saying that his brands were at
another place. Other cattle of the same age in the paddock were
branded. The paddock in which the heifers were found was
about twenty-four m,iles from MoCarrol's selection, and a stock
route ran from McCarrol's through the Emu Creek Reserve,
and then through the Emu Station paddocks to the prisoner's
paddock. To pass along this route the cattle would have to pass
through six gates. At the close of the case for the Crown, counsel
for the prisoner asked for an acquittal on the ground that there
was no evidence in support of the indictment to leave to the jury,
and contended that there was no evidence that the heifers were
actually moved or dealt with by any physical act. The learned
District Court Judge considered that there was evidence from
which the jury might conclude an actual moving, and put the
following questions to the jury : (i.) Are the three heifers the
property of Thomas McCarrol ? (ii.) If so, did the prisoner
beheve they were his own heifers ? Both questions were answered
against the prisoner, who was found guilty.
Lukin referred to The Criminal Code, s. 391 (6). The act of
steaUng is not complete until the person taking or converting
the thing actually moves it or otherwise actually deals with it by
some physical act. The evidence shows nothing in the nature
of aphysical act, or that the prisoner dealt with or moved the
cattle.
[Gbiffith C.J. : The heifers were in the prisoner's paddock
for three months ; he claimed them as his own. Is not that
evidence of an act of ownership within those three months ?]
494
Eex v. Leane.
Griffith C.J.
Cooper J.
Eeal J.
QUEENSLAND JUSTICE OF THE PEACE.
There is no evidence of moving or dealing with them. A
physical act must be proved. It is possible they had strayed.
Held, that there was evidence on which the jury were justified
in coming to the conclusion that the cattle were taken and
actually dealt with by the prisoner. The physical act may be
proved either directly, or indirectly, by circumstantial evidence.
Counsel : Lukin ; Dickson. Solicitors : Morris da Fletcher ;
Grown Solicitor.
1903.
22nd October.
Chuhb J.
[Caibns Ciecttit CotTKT.J
R. V. FITZGERALD.
[1903 Q.W.N. 75.]
Criminal law — Attempt to destroy property by explosives — No
allegation that the thing is the property of any person — Evidence
— Averment of facts — Pvblic pUtce—The Criminal Code, ss. 470,
566 (11).
Criminal Teial.
The accused was indicted for unlawfully and with intent to
destroy a certain ornamental arch putting dynamite (an explosive
substance) under the said arch, and thereby causing the destruc-
tion thereof. The evidence for the prosecution established that
an ornamental arch of timber, green boughs, and flowers, erected
across the railway line in honour of a visit of His Excellency the
Governor to open the Mareeba-Atherton railway, had been
destroyed by dynamite on 5th June, 1902, and tended to prove
that the accused had committed the offence.
At the close of the case for the Crown,
Macdonnell, for the accused : (1) The indictment is bad, as it
does not lay the property in respect of which the offence is com-
mitted in any person. (2) There is no evidence that the arch
was the property of any person or that it was erected in a public
place.
Jameson, for the Crown : The indictment need not allege that
the thing destroyed was the property of any person. The Criminal
Code, s. 566 (11).
CRIMINAL REPORTS, 1860-1907.
495
Chubb J. : There is no evidence that the arch was the property ^ "• ^it^erald.
of any person, otherwise the indictment might be amended in Chubb J.
that respect. The Criminal Code, s. 572. The section of the
Code [566 (11)] reUed on by the learned Crown Prosecutor does
not help him, because there is no evidence that the arch was
fixed in a square or street, or in any place dedicated to public use or
ornament ; and if there were such evidence the indictment
would still be bad for want of averment of facts. In a prosecution
under s. 470, where the property is not laid in any person, it must
be averred that the structure was fixed in a square or street,
or in a place dedicated to public use or ornament, if it is intended
to rely on s. 566 (11).
The learned Judge directed the jury to return a verdict of not
guilty.
Counsel : Macdonnell ; Jameson. Solicitors : Milford, Macdon-
ndl <Ss Henchman ; Alexander.
[NOBMANTON CIRCUIT CoUBT.]
R. V. HAMILL.
[1903 Q.W,N. 76.1
Criminal law — Practice — Publication of defamatory matter — Pro-
ceedings not taken at instance of the Crown — Indictment pre-
sented by Crown Prosecutor — Retirement of Crown Prosecutor
— Continuation of prosecution by person defamed — Locus
standi — Costs.
Ckeminal Tbial.
At the Normanton Circuit Court an indictment was presented
by the Crown Prosecutor against J. M. Hamill for unlawfully
publishing certain defamatory matter concerning J. A. Ross.
The defendant pleaded not guilty. The Crown Prosecutor
thereupon informed the Court that the proceedings were not
instituted by the Crown, and in these cases he was instructed by
the Attorney-General to present the indictment only, and leave
subsequent proceedings to the parties. He therefore withdrew
from the prosecution, which would be conducted by the soHcitor
for J. A. Ross. In reply to Chubb J., he stated that he did not
tender any evidence on behalf of the Crown.
1903
lOth October.
Chubb J.
496
QUEENSLAND JUSTICE OP THE PEACE.
Hamill.
Chubb J.
Oorton, for J. A. Ross : The accused was committed for trial,
a true bill found by the Crown Prosecutor, and an indictment
presented, to which the defendant has pleaded. The Crown
Prosecutor has withdrawn. I am entitled to conduct the prosecu-
tion on behalf of the person against whom the offence was com-
mitted. Any person may appear by counsel or solicitor, or I may
continue the prosecution for the Crown.
Chubb J. : The instructions given to the Crown Prosecutor
on which he has acted in withdrawing from this case are not of
any concern to the Court. He holds a commission to present
indictments and to prosecute in the absence of the Attorney-
General. That is distinctly stated in the indictment itself.
Although I am aware that the course adopted by him has been
sometimes followed, this is the first time it has judicially come
under my notice. In this State prosecutions are undertaken
by the Crown, and no analogy can be drawn from the English
practice, for there the person laying the information or complaint
on which a committal for trial is made, is generally bound over
to prosecute, and the costs of the professional assistance employed
by him are defrayed by the Crown, and it is only in exceptional
and grave cases that the pubUc prosecutor exercises his discretion
and undertakes the prosecution. If the Crown Prosecutor can
retire in this case, why should he not do so in a trial for murder,
and leave the relatives of the deceased to continue the case ?
Here the Crown Prosecutor has retired ; Mr. Gorton has no
commission to prosecute in the absence of the attorney, and I
have grave doubts whether he has any locus standi. Of course,
if his client has himself a right to appear and prosecute — and
possibly he may have — he may be represented by counsel or
solicitor. Criminal prosecutions for defamation nowadays are
uncommon, and usually arise only in respect of attacks upon
public functionaries, whose characters are of the highest import-
ance to the pubhc. Redress by civU action is open to Mr. Gorton's
chent, and I have an intense objection to assist the redress
of private grievances by operation of the criminal law. However,
as the course adopted has some support in past practice, I am
reluctant to prevent the continuation of this case. I wiU allow
the case to proceed as if it were a private prosecution, and will,
if necessary, reserve a point for the consideration of the Full
Court. It may be well to observe that the prosecutor, in the
event of an acquittal, will be liable to pay the defendant's costs
of the prosecution.
CRIMINAL REPORTS, 1860-1907.
Gorton expressed his unwillingness to proceed. A jury was
then empanelled, and directed by the learned Judge to return a
verdict of not guilty.
Counsel : Jameson. Solicitor : Gorton.
49.7
B. V. Hahill.
[Full Court.]
GEISE V. HENNESSEY, Ex parte HENNESSEY.
[1904 S.R.Q. 37 ; Q.W.N. 9.]
Gaming — Lottery — Ticket in a foreign lottery — Receiving of
money in Queensland to procure ticket in a foreign lottery —
Endeavouring to dispose of — " Any lottery " — The Suppression
of Gambling Act of 1895 (59 Vic, No. 9), s. 6 — General words
of statutes — Construction of meaning of.
A., a shopkeeper at Brisbane received money from B., for the purpose of obtain
ing for B. a ticket in a lottery conducted and drawn in Hobart, a place outside
the territorial limits of the State of Queensland. The ticket was sent by letter
posted at Hobart, and directed to B., at the address given by him to A., when
paying the purchase money.
Hdd, that an offence had been committed under a. 6 of T?ie Suppression of
Oambling Act of 1895, notwithstanding that the lottery was a foreign lottery.
Order Nisi to Quash a Conviction.
George Adams promoted, managed, and conducted certain lot-
teries at Hobart in Tasmania, known as Tattersall's Sweeps, in
which a chance of winning a prize was obtained by purchasing
a ticket. On 3rd July, 1903, the complainant, a constable,
went into a tobacconist's shop in Wickham Street, Brisbane,
which was kept by the defendant, and on asking to make a bet
on a horse race was told by the defendant, " I have none open ;
this is aU I can do for you ; give me the money and I will
procure for you some tickets in Adams' sweeps." On saying
this he handed to the complainant four leaflets advertising
the sweeps, and giving information for the guidance of intend-
ing purchasers of tickets. The complainant did not at that
time purchase a ticket, but about two hours later he re-entered the
shop and within the hearing of the defendant, said to an attendant
there, " I want a ticket in the Grand National Hurdle Race in
Adams' sweep." The attendant, remarking that he would act for
his master, took money for the ticket and for postage, and made a
GG
1903.
30th October.
Cooper G.J.
Real J.
498
QUEENSLAND JUSTICE OF THE PEACE.
Geiee v.
Hennessey,
Ex parte
Hennesset.
note of the complainant's name and address in a book, and on being
asked if he gave any acknowledgement of the money, repUed, " No,
you will get your ticket alright in about a fortnight's time." On
22nd July, the complainant received a letter at the address given
containing a ticket in the sweep on the Grand National Hurdle
Race, and several of Adams' leaflets.
The complaint on which the defendant was first charged con-
tained one count only, but during the hearing an appHcation was
made to amend by adding a second count. Counsel for the
defendant objected, but the justices allowed the amendment
on an admission that all objections to which the amendment
was open had been made. The amended complaint stated
that the defendant sold to Geise a ticket by means whereof
permission or authority was gained or given to Geise to compete
in a lottery, and for a second count that . . . the defendant
endeavoured to dispose of to Geise a ticket by means of which
authority was given to Geise to have an interest in a lottery.
The defendant was convicted on the second count and fined.
An order nisi for a quashing order was, on 7th September, 1903,
obtained before Cooper J., calling on the justices and the com-
plainant to show cause why the conviction should not be quashed
on the grounds : (i.) That the evidence disclosed no offence
under s. 6 of The Suppression of Gambling Act of 1895*, under
which the proceedings were taken ; and (ii.) that the complaint
was void for duplicity.
Feez and Macgregor moved the order absolute. There is no evi-
dence of seUing, or indeed of any dealing with a lottery ticket in
this State. The words " any lottery " in The Suppression of
Gambling Act of 1895,* s. 6, refer only to a lottery within the terri-
tory of this State, and not to one conducted beyond its jurisdiction.
Prima facie, a sovereign body makes laws for its own subjects only.
Jefferys v. Boosey (1854, 4 H.L.C. 815, at p. 985), Cope v. Doherty
(1858, 27 L.J. Ch. 600). It is not sufficient that the case falls
literally within the words of s. 6. Ex parte Blain (1879, 12 Ch.D.
522, at pp. 526-8), Harding v. The Commissioners for Stamps
for Queensland ([1898] A.C. 769). Some express enactment is
necessary to fix the application of a Queensland statute to offences
committed out of the State. Compare The Criminal Code, ss. 12,
* 59 Vic, No. 9, s. 6 : It shall be unlawful to sell or dispose of, or to
endeavour to sell or dispose of any ticket or other means by which permission
or authoritv is gained or given to any person to throw for, compete, or have
any interest in any lottery.
CEIMINAL REPORTS, 1860-1907.
499
14, 539. There is no evidence that the ticket received was a ticket
in a lottery. It is not illegal to take shares in a foreign lottery.
Harrison v. McGrath (1903, 5 N.Z. Gaz. L.R., p. 303), Macnee v.
Persian Investment Corporation (1890, 44 Ch.D. 306).
Power showed cause. As to second ground, he referred to
Archbold, 21 Ed., pp. 73, 78 ; The Criminal Code, s. 567 ; The
Justices Act of 1886, ss. 1, 43 ; Stephens v. Veivers (1900, 10 Q.L.J.
46). The words " any lottery," both in their literal meaning
and under the general scheme of the Act, are capable of including
lotteries conducted beyond Queensland's territorial limits. See
the definition of lottery, s. 4, and also ss. 5, 6, 7. Stoddart v.
Hawke (1901, 18 T.L.R. 23), Cawsey v. Andrews (1894, 20 V.L.R.
332).
Feez, in reply : The defendant, if he committed any offence, did
so as an agent. Section 6 in intended to deal with principals, and
if it was intended to apply to agents, they would be expressly
mentioned. He referred to Coleridge and Hawksford's Lottery
Acts, Colquhoun v. Heddon (1890, 25 Q.B.D. 129), Bergl v. Mount
Chalmers Copper Mines Limited (1902, St. R. Qd. 35), Adam v.
British and Foreign Steamship Company ([1898] 2 Q.B. 430),
■which was dissented from in Davidsson v. Hill ([1901] 2 K.B. 606).
CopPEB C.J. : The appellant in this case was convicted on
an information or complaint which charged him with having
endeavoured to dispose of a ticket to one Geise by means of which
authority was given to him to have an interest in a lottery. The
evidence upon which the appellant was convicted was very short,
and I wiU read it. Geise said : " I remember 3rd July last. On
the evening of that day, at 7.10 p.m., I was in the defendant's shop.
I saw the defendant there. I said to him when he was behind the
counter ' I want a packet of cigarettes.' He gave me the cigarettes.
I paid him 3d. for them. I then said to defendant, ' Will you give
me a double on the Creek races ? ' Defendant replied : ' I have
none open ; this is all I can do for you ' — at the same time handing
me four leaflets in reference to Adams' sweeps — ' give me the
money, and I wiU procure you some tickets in Adams' sweeps.' "
The leaflets which he handed to the respondent were certain
documents of different colours, with which I apprehend the public
of Queensland are fairly familiar. One of them states "Metro-
politan Stakes. Thpre are 50,000 subscribers at 5s. — £12,500, less
10 per cent. (£1,500), deducted by the promoter of the sweeps, and
5 per cent, also deducted for the Tasmanian Government
Geise v.
Hennessey,
Bx parte
Hennessey.
Cooper C.J.
500
QUEENSLAND JUSTICE OF THE PEACE.
Gbise v.
Hennessey,
Ex parte
Hennessey.
Cooper C.J.
Dividend Tax on prizes (£562 10s.), the total being £10,687 10s,
The first horse is to net £4,000, the second £1,250, the third £750 ;
other starters divide £1,000, and non-starters divide £937 10s.
There are ten cash prizes at £50 each, amounting to £500 ; twenty-
five at £20, amounting to £500 ; 100 at £10, which net £1000 ;
150 at £5, which net £750. The total being £10,687 10s. There
are 285 extra cash prizes. Every £1 invested will have a chance of
drawing twenty separate prizes. The above amount wiU be
paid in full, but if the sweep does not fill it wiU be drawn pro rata,
and prizes paid accordingly. Please allot me shares in
your monster cash consultation on the Metropolitan Stakes,
50,000 at 5s. each."
Now, it seems to me, that the document I have just read is an
invitation to persons to send to the promoter of this sweep a sum
of money, the receipt of which wiU be acknowledged, and a ticket
given which will entitle the recipient to a chance of drawing a prize
in that sweep. The words used by the appellant, " This is aU I can
do for you," when he handed the leaflets to the respondent, and
the statement " give me the money and I will procure you some
tickets in Adams' sweeps," seems to me to be an attempt to bring
about an arrangement the natural and expected result of which
was to be that the respondent was to receive a ticket entitUng him
to a chance in that sweep, after he had handed over the price of
the ticket and the cost of procuring it to the appellant. If that is
so — if I am correct in that view — then I think that the transaction
amounted to an endeavour on the part of the defendant to dispose
of a ticket in a lottery to the complainant. The next question in
the case arises under s. 6 of the Suppression of Gambling Act, which
enacts that " It shall be unlawful to sell or dispose of, or to en-
deavour to sell or dispose of, any ticket or other means by which
permission or authority is gained or given to any person to throw
for, compete, or have any interest in any lottery." It has been
argued on behalf of the defendant that the words " any lottery " in
that section mean any lottery which is in existence or is drawn in
Queensland, and cannot relate to any lottery outside the State, and
reUance is placed upon the case of Harrison v. McGrath (1903,
5 N.Z. Gaz. L.R., p. 303). That case has been fully discussed
at the bar. There the conviction was made under s. 18 of the
New Zealand Statute (45 Vic, No. 10), which provides "that
any person who shall establish commence or be a partner in any
lottery or in any scheme .... and aliy person who shall
assist in managing or conducting any such lottery or scheme shall
CRIMINAL REPORTS, 1860-1907.
501
ior every offence forfeit and pay a sum not exceeding two hundred
pounds." The conviction was for assisting in managing or
■conducting a lottery, and the Court of Appeal in New Zealand
held — and I say it with great respect — that the words " estab-
lish, commence, or be a partner in any lottery " could only
relate to the establishment or commencement of any lottery
in New Zealand, and that the words " assist in managing
or conducting any such lottery," could only relate to the
management or conduct of any lottery in New Zealand. Our
.section does not contain the word " such " or any demonstrative
word. The offence is complete under our section if a person
disposes or attempts to dispose of a ticket which authorises
anyone to have any interest in any lottery, no matter where that
lottery may be conducted. The offence is disposing of a ticket,
not conducting a lottery. Therefore, in my opinion, the contention
that the words " any lottery " relate only to a lottery promoted or
conducted in Queensland fails. On the other point, I think the
defendant also fails, and that the order should be dischargied.
Real J. : I am of the same opinion. The section says it shall
be unlawful to sell or dispose of, or to endeavour to sell or dispose
of, any ticket in any lottery. It has been argued that this sweep,
being conducted in Tasmania, is not a lottery within the meaning
of the words of the section. It is admitted, however, that it is a
lottery ; but it is said that it is not a lottery within the purview
•of the Act, inasmuch as the Act was never intended, and does not
•apply, to any lottery held outside of Queensland. Of course,
nothing done outside of this State is an offence against the laws
of the State ; but the act committed here is that of endeavouring
to sell a ticket in a lottery, and that is as much an offence, if the
ticket was one in a lottery in Germany, as if it was one in a lottery
drawn in Brisbane. In the commission of the offence the place
where the lottery is promoted is immaterial. On the other point,
whether there was an endeavour to sell, I am quite in accord
with my brother the Chief Justice. It is perfectly clear that
there was evidence before the justices on which they could find
that the defendant endeavoured to sell a ticket, and beyond
that we need not go.
Bule discharged, with costs.
SoUcitor for the complainant : The Crown Solicitor.
Sohcitors for the -defendant : Morris & Fletcher.
Geibe v.
Hennessey,
Ex parte
Hennessey.
Cooper C.J.
Real J.
602 QUEENSLAND JUSTICE OF THE PEACE.
[Full Coubt.]
REX V. GRIFFITHS AND OTHERS.
[1904, S.R.Q. 143 : Q.W.N. 45.]
1904. Criminal law — Prosecution under The Licensing Act of 1885 (49
SrdMay. y^^^^ jy^^ Ig), ss. 6, 10, 11, 109— Heard hy Police Magistrate-
Cooper C.J. not sitting as a Licensing Court — Jurisdiction — The Criminal
^''"""•'^- Code, s. 132.
G. was convicted of an offence under s. 109 of The Licensing Act of 1886 before
the Police Magistrate of Charters Towers, who was not sitting as a Licensing
Authority. The offence was committed within the Licensing District of Charters-
Towers, for which Licensing Justices had been appointed. Three persons con-
spired with one another, between the date on which the summons was served on G.
and the date of the hearing by the Police Magistrate, to defeat the course of justice
by giving false testimony ; they were prosecuted under s. 132 of TM Crimincl
Code and convicted. On a case stated, the question was raised whether the Police
Magistrate sitting in Petty Sessions had jurisdiction to hear and determine the
charge against G.
Hdd, that he had jurisdiction, and that the prisoners were rightly convicted.
Cbowij Case Reserved.
In a case stated under s. 668 of The Criminal Code the following
facts appeared : — M. E. Griffiths, Ivy Griffiths, and George Watts
were tried before Miller D.C.J, at the Criminal Sittings of the
District Court held at Charters Towers on 22nd February, 1904,
on a charge of conspiring together to defeat the course of justice
{The Criminal Code, s. 132) upon the prosecution of M. E. Griffiths
for the offence of unlawfully selling certain Uquor (49 Vic, No. 18,
s. 109). The offence had been prosecuted before the Police
Magistrate at Charters Towers sitting in Petty Sessions, and
objection taken on behalf of the defendant that the offence,
being one against the provisions of The Licensing Act of 1885,
could not be heard except by the Hcensing justices sitting as
a Licensing Court. Evidence was given on the trial before
Miller D.C.J, which clearly established that between the date of
the service of the summons and the hearing of the charge by the
Pohce Magistrate the three persons charged had conspired together
to bring false evidence for the purpose of showing that a person
other than M. E. Griffiths was the lessee of the house in which the
liquor had been sold, and had sold the liquor. From the informa-
tion and the summons therein, it appeared that the charge was
entered to be heard before a Court of Petty Sessions, and not
before a Licensing Court ; it was also proved that a Licensing
CRIMINAL REPORTS, 1860-1907. 503
Authority had been constituted, and licensing justices appointed ^^"^ "• Gbi^wths
for the district of Charters Towers. '''"' Othkrb.
At the conclusion of the case, counsel for the accused persons
urged that no offence under s. 132 of The Criminal Code was dis-
closed by the evidence, on the grounds : (i.) That the Police
Magistrate had no jurisdiction to hear and determine the charge,
and that it should have been heard before a Licensing Court
and before licensing justices ; (ii.) that the Licensing Court
was a separate Court to determine all offences under The Licensing
Act of 1885, except those under s. 136 of that Act ; (iii.) that the
summons issued showed that the charge was to be heard before a
Court which had no jurisdiction to hear and determine it ;
(iv.) that, therefore, there was no evidence to show any attempt
to defeat the course of justice within the meaning of s. 132 of The
Griminal Code in a matter to be heard before a tribunal of com-
petent jurisdiction.
The Judge overruled the objection, and allowed the case to go to
the jury, by whom the accused were found guilty. Sentence was
pronounced, but execution was respited pending the decision of the
following questions which were stated for the opinion of the
Full Court :—
1. Did the laying of the information and the issue and service
of the summons, and the hearing of the matter by the
Police Magistrate sitting in Petty Sessions, constitute a
matter in respect of which there could be a conspiracy
to defeat the course of justice within the meaning of
s. 132 of The Criminal Code ?
2. Was it only necessary to prove that any matter was in
course of proceeding in order to constitute the crime of
conspiring to defeat the course of justice within the
meaning of s. 132 of The Criminal Code ?
Stumm and Hobbs, for the accused : The accused were charged
with conspiracy to defeat the course of justice in a case heard by
a Court of Petty Sessions, and in which one of the accused was
charged with selling Uquor without having obtained a Ucense.
The Licensing Act of 1885, s. 109. We contend that on the proper
construction of s. 136 of that Act, all offences committed against
the provisions of the Licensing Act, with the exception of those
for which the maximum penalty does not exceed five pounds, must
be heard and determined by licensing justices and before the
licensing Authority of the Licensing District within which the
offence is committed. A Licensing Authority has been constituted
604
QUEENSLAND JUSTICE OF THE PEACE.
Bex v. Gkitfiths for this district ; it was the proper tribunal to hear the case, and
■ the Police Magistrate sitting in Petty Sessions had no jurisdiction.
The accused, therefore, have committed no offence, for their con-
spiracy could not have any effect on a case heard by a tribunal
which lacked jurisdiction. The Licensing Act of 1885, ss. 5, 6,
10, 11, 136, and Ex parte Dunn (1882, Term Reports (N.S.W.) 94).
Sir A. Rutledge K.C. and Scott, for the Crown : The Police
Magistrate is, ex officio, a member of a Licensing Authority \The
Licensing Act of 1885, s. 6, subsec. 2 (a)], and has jurisdiction con-
ferred by s. 11. The complaint was made under s. 109, and the
offence is not declared to be a misdemeanour. The conviction
should be affirmed.
Cooper C J. CooPER C.J. : The prisoners in this case were charged before the
District Court at Charters Towers with conspiring with one another
to defeat the course of justice, an offence under s. 132 of The,
Criminal Code. The conspiracy consisted in coming to a deter-
mination that they would give false testimony in a matter then
pending before the Police Magistrate at Charters Towers, in which
one of the prisoners was being prosecuted for committing an offence
against the provisions of s. 109 of The Licensing Act of 1885. On
behalf of the prisoners the contention is raised that the PoUce
Magistrate in hearing the matter was sitting as the presiding
officer of a Court of Petty Sessions, and not as the presiding officer
of a Licensing Court ; that the matter being an offence under The
Licensing Act of 1885, could only be heard by a Licensing Authority
constituted under that Act, and that consequently the proceedings
were futile.
The Police Magistrate hearing the case was appointed for
Charters Towers, a place within the constituted Licensing District
in which the offence was committed. For that district, it is true,
licensing justices had been appointed, but s. 11 of The Licensing
Act of 1885 provides that " every authority conferred by that Act on
justices shall be exercised by a police magistrate or two or more
licensing justices of the district in which the authority is to be ex-
ercised, and every offence . . . for which by this Act any ,
punishment . . . may be inflicted, shall ... be prose-
cuted . . , . before a police magistrate or two or more hcensing
justices. . . ." In my opinion, that section gave the Police
Magistrate complete jurisdiction to hear the case ; in fact, unless
two or more licensing justices had been present, he was the only
judicial officer who had any authority to adjudicate upon it.
OEIMINAL EEPORTS, 1860-1907. 505
Whether he was sitting as presiding officer of a Police Court or of ^^^ ^- Gmffiths
T . i .T .. I ,, . ■, , AND Others.
a Ldcensing Authority, he was the proper person appointed by
the Act to hear and determine the offence charged. The con- Cooper C.J.
viction will be affirmed.
Power J. concurred. Power J.
Conviction affirmed.
SoUcitors for the prisoners : Foxton & Hobbs, for Boyce, Charters
Towers.
The Grown Solicitor.
[Full Coubt.]
EEX V. ANGUS MACDONALD AND FLORA MACDONALD.
[1904 S.R.Q. 151 ; Q.W.N. 50.]
Criminal Law — Wilful Murder — Accused jointly indicted — Duty 190*.
of 'parent and of person in charge of a child to provide the '^^^'fgh If'' ^*'*'
necessaries of life — Joint control — Ill-treatment — Failure to
procure medical aid — Neglect ending in death — Acting in concert R°ai'j ' '
—The Children's Protection Act of 1896 (60 Vic, No. 26), s. 1 Chubb J.
—The Criminal Code, ss. 285, 286, 301, 302.
A.M. and F.M., his wife, were convicted of the wilful murder of G.M., the
■daughter of A.M. by a previous marriage. The allegation on behalf of the Crown
was that the death of G.M. had been caused by a series of acts and omissions of
duty by the prisoners, consisting of violence and ill-treatment, failure to provide
proper clothing, failure to provide food, and failure to obtain any medical assist-
ance when it was easily procurable.
On a case reserved, hdd (-per curiam), that A.M. and F.M. were both charged
wita the duty to provide G.M. with the necessaries of life, and that there was
evidence to show that A.M. and F.M. had exercised a joint control over G.M., that
A.M. and F.M. had acted in concert and for a common purpose, and that the
death of G.M. had been caused by the acts and omissions of duty on the part]of the
prisoners so acting in concert.
Per Real J. : That apart from statutory provisions, there was sufficient evidence
of acts done by each of the prisoners, coupled with omission of common law
duties, to warrant the finding of the jury against each of the prisoners without
reference to the acts of the other prisoner.
I Per Chubb J. : That medical aid was, under the circumstances of this case, a
necessary of life, and that there was evidence from which the jury could draw
the inference that A.M. had, with the assent of F.M., deliberately abstained from
506 QUEENSLAND JUSTICE OF THE PEACE.
Bex v. Angus calling in medical aid, both prisoners desiring and intending the death or
Maodokald and acceleration of the death of G.M.
Floba Macdonald
Ceown Case Reseeved.
The prisoners were charged with wilful murder, and tried by
Power J. and a jury at the February Criminal Sittings of the
Central Court. They were found guilty and sentenced to death,
execution being respited pending the hearing of certain points
reserved for the opinion of the Full Court.
The following was the case stated by Power J. : —
The prisoners, Angus Ranald Macdonald and Flora Alma-
Macdonald were charged with the wilful murder of Grace Robertson
Macdonald at Uradah on the 31st of October, 1903, and were tried
at the Criminal sittings held at Rockhampton commencing on the
29th iday of February, 1904. The prisoners were alleged to have
brought about the death of the deceased by a series of acts con-
sisting of — (1) Violence and ill-treatm.ent ; (2) Failure to furnish
the deceased with proper clothing ; (3) Starvation ; (4) Neglect
to obtain any medical advice when it was easily procurable.
The following facts appeared in evidence : — The deceased girl,
who at the time of her death was about 14 years of age, was the
daughter of the male prisoner by a former wife, and Uved with
the prisoners, her father and stepmother, at Uradah, a grazing
selection situated some fourteen miles from Longreach. The only
occupants of the house were the two prisoners, the deceased girl,
and two children of the female prisoner, aged about three and two-
years. The deceased girl was a robust, healthy child in March,
1903, when she was first taken to live at Uradah, and eight months
after she died in a very emaciated condition, covered with sores
and dirt, with two of her ribs broken, and her right wrist disorgan-
ised, the bone being exposed. During these months she was in
the sole care of the prisoners. The place was rarely visited except
by the mailman, Walter Russell Poole. Only four persons gave
evidence as to the condition of the girl whilst living at Uradah.
Samuel Irwin was at Uradah when the deceased girl arrived
in March, 1903, and remained there for some days afterwards.
He says she was then by appearance a healthy, strong girl, and
was engaged in assisting in domestic duties. The prisoners
appeared kind to the deceased, and he never heard them speak
unkindly to her.
Richard John Garth visited Uradah on business about the
latter end of June, 1903, and saw the deceased girl. It was a
cold, cloudy day. She was then raggedly dressed in what he
CRIMINAL EEPORTS, 1860-1907. 507
would call a bran bag, and a garment of some sort round the upper j^^'' ''; ^'""'^
part of the body, with arms and legs bare. He said she was not Flora Maodonald
decently dressed even for a bush girl. Plenty of clothing was
subsequently found in the house suitable for a girl of her age.
The mailman (Walter Russell Poole) says he saw the deceased
girl in the winter time without boots, stockings, or hat on, when
the weather was very cold — so cold, that he himself used a rug
and an overcoat.
On the second or third Wednesday in September, Poole saw
the girl when she delivered a letter to him. She was very thin
and miserable looking, and, as far as he could judge, her health
was very bad. Her eyes seemed sunken in, and had big rings
round them. She seemed very frightened. The prisoners were
not seen at Uradah on this occasion, but three miles further on
Poole met them driving home. On the 27th October, four days
before the girl died, Poole was again at Uradah for about half-an-
hour, when the male prisoner was with him the whole time. No
mention of the girl was made on that day, nor on the following
day, when Poole was again at Uradah. Poole was never asked
into the prisoners' place since March last, though prior to that
time he had been frequently invited. The male prisoner said he
did not want visitors.
On October 9th Frederick Millburn visited the prisoners on
business to report travelling sheep. He rode up about half-past
1 or 2. He heard a woman's voice scolding, and he then heard
the female prisoner say to a little girl who was cleaning knives
in the yard, " Hurry up and get the work done, or I'U come down
and hven you up a bit." Millburn passed -within a foot of the girl.
She was cleaning knives with the left hand, the other resting on
a box. It was a very hot day. There was no shade over the
girl, and she had no hat on. She was dressed in an overall, split
and full of holes so that most of her body was visible. Her feet
were all swollen and big and covered with dirt, with the skin
peehng and sticking up through the dirt. Her eyes and eye-lids
seemed full of matter. There was a disagreeable smell from her,
and Millburn was under the impression she was a half-caste. She
seemed skin and bone, and Millburn said he never saw anything
like it in any human being.
On October 3rd, William Avery met the male prisoner in Long-
reach and had a conversation with him. The male prisoner said
he was making arrangements to send deceased away to a reform-
atory or industrial school, but delay had arisen about the arrange-
608 QUEENSLAND JUSTICE OF THE PEACE.
Bex v. Anqus ments. He said he hadn't been able to manage the deceased
iFLOBA Macdonald gi^l. He said that he had tried moral suasion, and that he had
beaten her without effect. He said he had put her on bread and
water for three days. He complained about her steaMng money
and food, and lying. He said he was altering his will and some
of his insurance policies, and was making arrangements to dis-
inherit her. He said she broke out at intervals in sores, which he
attributed to hereditary syphihs. Avery made a remark that
even if it were true he should screen the child. The male prisoner
replied, " It's no good, if there were 40,000 rattle-snakes
there they could all her." The male prisoner asked Avery
what he thought of a child you could knock down hke a beast,
and in a few minutes afterwards she would get up and repeat the
offence. The male prisoner was very excited on this occasion,
but apparently sober.
The girl died on the evening of the 31st of October, and that
night the male prisoner arrived in Longreach, where he was seen
by Sergeant Broderick, to whom he announced the death of his
daughter. In answer to a question by the police officer as to why
he did not call in a doctor, he said, " I didn't think she would die
so soon." He said the cause of death was " pox." In answer
to a question as to whether the deceased was robust and healthy,
he said, " Great goodness, she was as strong as a lion," but added
later on, " You'U find she has lost a good lot of flesh within the
last week." Under instructions, Constable Tracey returned to
Uradah with the prisoner that night, where they arrived about
3 a.m. Tracey waited to see the body by daylight, when he was
shown into the room where the deceased lay. He rode back to
Longreach and made a report, and on the afternoon of the 1st
November returned with Sergeant Broderick and Dr. Hewer.
The latter conducted a post-mortem examination.
Dr. Hewer said the body generally was very emaciated, with
sores on the front of the trunk, the upper and lower part of the
back (this one being several inches across), on the right arm, on
the left arm, on the left hand, on the right thigh, on the left thigh,
on the left foot and right foot. There were also smaller sores on
the thighs and legs. There was matter in aU the big sores. The
skin over the left knee-cap was destroyed, and the whole of the
knee-cap exposed. There were stones and dirt in the feet. The
eleventh and twelfth ribs were fractured, the eleventh in two
places, and the twelfth in one. There was a considerable quantity
of matter round two of the fractures. He lanced the skin and pus
exuded. The right wrist was disorganised, the ulna bone pro-
CRIMINAL REPORTS, 1860-1907. 509
traded through the skin for about an inch and a-half . The liea- ,?™ "• ^"ots
. T1C11 Macdonaid and
ments of the wrist were all destroyed, a lot of the bone being absent. Floba Macdonah>
The internal organs were normal, though wasted. The weight of
the body could not have been more than four stone at most, and
ought to have been two or three stone heavier. The cause of
death was exhaustion, caused probably by the drain on the system
from these suppurating sores. Dr. Hewer could not say what was
the cause of the sores. The cause of the broken ribs, he said,
must have been some external injury. Those ribs are not easily
broken, and it would take a sudden, quick and very severe blow
to break them. He said it was not impossible, but it was im-
probable, that the fractures were caused by the butt of a goat.
There were goats about the place, but the evidence of three wit-
nesses shows that they were quiet. Some of the large sores were
pressure sores or bed sores. Some of the sores must have been
three weeks old, at least, and were probably more. Those on the
feet and wrist had been there for six weeks or two months. The
deceased girl could not have walked without pain on the 9th
October, nor could she have used her right wrist three weeks
before her death. She was not fit to work on the 9th October.
In the doctor's opinion the ribs were then in a broken condition,
and if the girl were cleaning knives it would cause her pain. Any
movement would cause pain. She looked Hke a child that had
been neglected. There was no evidence that the sores had been
treated. Boracic acid was sprinkled on some of them, but was
probably put on shortly before or after death.
Dr. Hewer said, assuming that in March the child was healthy
and robust and ate heartily, he wouldn't expect these sores. A
person who is not fed properly would be more likely to break out
in sores than one who is fed properly. The pressure sores are
liable to come in emaciated people. The body would be bound
to be emaciated from the sores alone, apart from any question of
nourishment. The sores would have kept the body in an emaci-
ated condition no matter how well fed it was. AU the injuries
except the injuries to the ribs might arise from a strumous state
of the body. There was caries of the bone and necrosis of the
bone which arise from many causes, including tuberculosis, con-
genital syphilis, struma or scrofula. There was caries of bone in
the wrist. It was similar to a tubercular wrist. There was no
evidence of syphilis in the body, though it was examined with
special care for symptoms of this disease. The sores could have
been prevented from reaching the stage they were in by proper
SIO QUEENSLAND JUSTICE OF THE PEACE.
Eex v. Angus treatment or attention in the earlier stages. If attended to there
Maodonald and . , °
Plora Maodonald IS no reason why they should not have been cured. In Dr. Hewer's
opinion he would haye saved the child if he had been called in two
or three months before, but he could not say anything definite as
to the result if called in three weeks before. Dr. Hewer thought
that after the sores developed, treatment by a competent person
would have prolonged Ufe. Even three weeks before death, if
the matter round the ribs had been removed, in his opinion life
would have been prolonged, even though the other sores were
neglected. No doctor was called in prior to death.
On the 1st November the other two children at Uradah looked
all right as to their health. They were nicely dressed, and had
the appearance of weU-cared for children.
Under the will of the male prisoner's first wife he was appointed
executor and sole residuary legatee, whilst a sum of £200 was left
to the deceased girl upon her attaining the age of 21 years, or
marrying. In 1896 the male prisoner appears to have settled a
policy of insurance for £1,000 in favour of the deceased girl.
The prisoners did not give evidence, but their statements made
at an inquiry into the cause of the deceased girl's death, held at
Longreach on the 10th November, 1903, were tendered by the
Crown, and admitted each one against the prisoner making the
statement.
The material part of the male prisoner's statement was to the
following effect : — •
Prior to the arrival of the deceased at Uradah she had Uved in
Melbourne and Brisbane. She was strong and healthy and was
not affected by any disease that he knew of. Complaint had been
made about her, and he brought her up to reform her. After
coming up she helped in the house work. He found her lazy and
untruthful. She told lies and stole. She confessed to drinking
the dog's milk. She stole food, including sausages, sardines,
salmon and jam. Soon after her arrival she dined with the
prisoners, but latterly dawdled and came late for meals. She
refused food at the table and afterwards stole it. The male
prisoner tried moral suasion, but never beat her, and the deceased
girl was never starved or ill-treated. The prisoners came to the
conclusion that she was incorrigible, and determined to send her
to the Reformatory. Steps were taken by the male prisoner in
that direction two months before the deceased's death. Some
months after the deceased's arrival, sores were noticed, which the
female prisoner treated, and they were nearly healed. No fresh
CRIMINAL REPORTS, 1860-1907. 511
sores came out till a couple of months before the inquiry. The ^^^ "■ ^^'ocs
1 • i- 1 j.1. Tx- J 1 1- ^ - MaCDONALD AND
male prisoner noticed the condition ot her feet five or six weeks Ploba Maodonald
hefore she went to bed. He noticed her right wrist about three
weeks before she went to bed. He did not treat her wrist or do
anything to it until the day of her death. There was a band-
age on it. The deceased put it on herself. The male prisoner
thought the sores on the body of the deceased were due to syphiUs.
He knew syphilis was a bad disesase, but he did not think the sores
were serious enough to call in a doctor. The deceased went to
bed on the 24th October, a week before her death. She never
complained of iU-usage or pains until the day of her death. She
never complained about her wrist or ribs. She said the goats had
knocked her down several times. She used to milk the goats.
The male prisoner frequently saw her knocked about by the goats,
and on one occasion knocked violently down. He attributed the
■wrist to the goats, which he said were very wild. A few days
before her death the prisoners decided, if deceased were no better
by Saturday, they would take her in to see a doctor. The male
prisoner does not know when she died. On Saturday he went out
for the horses and came home late in the evening and had a con-
versation with her, when she complained of a pain in her stomach.
He gave her a cup of milk, went out again for the horses, found
them and yarded them. He then went into his daughter and
found her dead in a sitting position. There was no one in the
room at the time. He was the first to find her dead. The male
prisoner rode into town, informed Mr. Cannan, his solicitor, then
Dr. Hewer, and then the police. The prisoner's selection was about
4,500 acres in size. The male prisoner worked the selection
himself. He did his own boundary riding during the day and
came home at night. Latterly he had no sheep on the selection.
The female prisoner's statement shows : —
She returned to Longreach with deceased in March last, when
she was a robust and healthy girl. The deceased assisted the
female prisoner in domestic work, and at first worked agreeably.
The female prisoner did not bring the deceased up to work for her.
The female prisoner seldom went out anywhere, and the deceased
was continually under her eye. She never chastised her. The
deceased was most untruthful and used to steal. During her
experience of her at Uradah, the female prisoner does not think
the deceased girl had any moral sense. The female prisoner
believed she suggested hiding the key to remove temptation out of
deceased's way and prevent her stealing food from the stores.
512 QUEENSLAND JUSTICE OF THE PEAOE.
Bex II. Akous The female prisoner hid the key. The deceased was denied nothing
PlobaMacdo^ld to eat. She did not drink the dog's milk because she was hungry,
There was always plenty to eat, and she ate hearty meals. The
female prisoner had been a hospital nurse for three years. She
first saw sores on the deceased's arms three months before the
inquiry, and dressed them. The deceased's feet were sore six
weeks before she went to bed. The female prisoner washed them
and examined them. She first saw sores on the deceased's body
a week before her death, when she was put to bed. She first saw
the deceased's wrist three weeks before her death. The prisoners
mentioned that the cause of the sores might be syphilis. The
female prisoner said she knew it was a deadly disease. The
deceased told the female prisoner the goat trod on her feet. She
had plenty of boots and stockings, but preferred to go bare foot.
The female prisoner believed in doctors. When her own child,
Elspeth, was unwell the previous Christmas she brought her into
Longreach and put her under medical care, and went to Brisbane
principally for her benefit. The deceased went to bed herseU on
the 24th October. The female prisoner noticed something
offensive about her the day she went to bed. The female prisoner
washed the deceased every day while she was sick, and dieted her.
The deceased did not ask to see a doctor. She never complained
about anything until the day of her death, when she said she had
a pain in her back. The male prisoner spent most of the day
looking for horses to bring her into a doctor. He came in and
said he thought the deceased was worse. The female prisoner
went in and appUed restoratives, but found life extinct.
At the close of the case for the. Crown, Mr. Lukin, counsel for
the prispners, asked for a direction that there was no evidence to
go to the jury of any neglect of duty on the part of the female
prisoner, nor any evidence to justify the jury in finding a verdict
of either murder or manslaughter against her.
I declined to direct an acquittal of the female prisoner.
Mr. Lukin called no evidence.
In summing up to the jury I referred to s. 285 of The Criminal
Code as peculiarly applicable to the circumstances of this case,
and said that both prisoners, and particularly the father, had a
special duty to attend to the wants of the deceased. I told the
jury that parents were charged with the duty of nourishing and
protecting their children, and failure to do that might be either
wilful and deliberate, or might arise from carelessness and neglect,
without being designed to any particular end. Neglect, where
CEIMINAL REPORTS, 1860-1907. 5l8
-there was no intention that death should ensue, was manslaughter, ^^^ "• -^nots
but wilful neglect, coupled with ill-treatment, and absence of fi.oRrMiCDONAiiy
medical aid, would amount to wilful murder, if by these acts the
jury were satisfied that it was contemplated by the prisoners that
death would ensue. If the object of the prisoners was to kill bhe
child by a slow course of torture, and a slow course of neglect, it
was murder. If there was no desire to kiU the child, then it would
amount to manslaughter only. If the prisoners acted in concert,
intending to prpduce death, then both prisoners would be guilty
of wilEul murder. I asked the jury to consider whether death was
caused or accelerated by neglect or ill-usage by the prisoners, or
either of them, and whether they meant death to be the result of
their course of treatment. I also told the jury that from the facts
disclosed the absence of any attempt to obtain medical treatment
for the deceased was sufficient evidence to show that death was
much accelerated by neglect on the part of the prisoners.
After the jury retired, Mr. Lukin objected to my directions as
to the duty of the prisoners to attend to the wants of the deceased,
and asked me to re-direct the jury upon the omission to obtain
medical evidence for the deceased. I recalled the jury and told
them that the fact that the prisoners did not call in any medical
attendant might be evidence of neglect, but was not necessarily
so. It was for them to draw their own conclusions. I did not
want them to say that the fact that a medical attendant was not
called in was ergo neglect.
The jury found both prisoners guilty of wilful murder, and I
passed sentence of death, but respited execution. At the request
of Mr. Lukin I reserved the following questions for the considera-
tion of the Court : —
1. Whether there is any evidence of a legal duty on behalf of
the female prisoner and a neglect of a legal duty which,
caused or accelerated the death of the deceased ?
2. Whether there is any medical evidence upon which the
jury were justified in arriving at a conclusion that
death arose from a neglect of any duty ?
3. Whether my direction was correct that both of the
prisoners, as a matter of law, particularly the father,
had a special duty to attend to the wants of the
deceased, and a neglect of that duty by either or both,
resulting in death, made the one or both guilty of
murder or manslaughter, according to circumstances ?
4. Whether my direction was correct that the fact of the
HH
5-14 QUEENSLAND JUSTICE OP THE PEACE.
Bex v. Anods prisoners not caUins in medical assistance might be
Macdonald and ^
FlobaMacdonald evidence of neglect, but was not necessarily so ?
Lukin and Stumm for the prisoners.
Sir A. Butledge, K.C. and O'Bourke for the Crown.
Lukin : The learned judge was wrong in directing the jury that
the same duty was imposed on both prisoners. The duty of sup-
plyiQg food, clothing, and medical attention is, in law, on the
father, and not on the female prisoner, unless the fact that these
duties were delegated is estabhshed. The Criminal Code, ss. 285
and 286* are declaratory of the law. Stephen's Digest of the
Criminal Law, 5th Ed., articles 233-4-5. These duties are fixed
on the head of the house. B. v. Saunders (1836, 7 C. ^ P. 277),
B. V. Squire (1799, cited in Russell on Crimes, 6th Ed., Vol. I.,
p. 151), B. V. Forsyth (1899, cited in Archbold's Crim. Pldg.,
22nd Ed., p. 751). It is clearly the duty of the male prisoner to
procure the food, if not to administer it. The woman is not the
servant of the husband, and wilful neglect on her part to perform
a delegated duty must be proved. She is not chargeable with acts
of Omission. B. v. Saunders {supra). The jury being directed that
the duty of both prisoners was the same, it is possible they may
have come to a conclusion that the food was not suppUed at all,
in which case the female prisoner would not be guilty. The atten-
tion of the jury should have been directed to two separate points —
whether the male prisoner performed his duty, and what it was ;
and whether the female prisoner performed her duty, and what her
duty was. The duty on each is not the same, and depends on
questions of fact in each case. Russell on Crimes, 6th Ed., Vol.
III., p. 18 ; Vol. I., p. 151 ; B. v. Bvbb and Hook (1850, 4 Cox,
C.C. 455, at p. 459), B. v. Edwards (1838, C. & P. 611).
The learned Judge decided the question of the female
* Section 285 : It is the duty of every person having charge of another who
is unable by reason of age, sickness, unsoundness of mind, detention or any
other cause, to withdraw himself from such charge, and who is unable to provide
himself with the necessaries of life, whether the charge is undertaken under a
■contract or is imposed by law, or arises by reason of any act whether lawful or
Tinlawful, of the person who has such charge, to provide for that other person
the necessaries of life ; and he is held to have caused any consequences which
result to the life]or health of the other person by reason of any omission to perform
that duty.
Section 286 : It is the duty of every person who, aa head of a family, heis the
■charge of a child under the age of fourteen years, being a member of the household,
to provide the necessaries of life for such child ; and he is held to have caused
any consequences which result to the life or health of the child by reason of any
■omission to perform that duty, whether the child is helpless or not.
CRIMINAL REPORTS, 1860-1907.
>'.»
-prisoner's responsibility when it ought to have been left to the iurv. ^^'^ '"' ^*"*''*
^ .., 1, II. , Macdonaiid and
There is m law no duty on her, unless from the circumstances or by FlobaMacdonald
•direct evidence it is proved that the head of the house has delegated
the duty to her. There was no duty on her to obtain food, and no
•evidence of delegation of the duty to administer it, or to give
■clothing, or seek medical attention ; and there is no evidence that
she ill-treated the child, or failed in any duty. At the trial, the
•Crown did not open a case of concert ; and even if it were made,
-the direction of the learned Judge was insufficient, for he should
have directed the jury that unless some delegation of duty was
made to the woman, she was not acting in concert ?
[Real J. : How could the jury find both prisoners guilty,
■unless on the ground that they acted in concert ?]
The jury should have had the opportunity of considering the
•case from the points of view both of commission and omission.
[Real J. : The direction given does not allow any amount of
■omission to constitute wilful murder. The learned Judge said
that negligence alone is not sufficient, but it must be coupled with
311 treatment and absence of medical aid.]
The cases do not show that any duty was isaposed on the woman.
M. V. Shepherd (1862, 31 L.J.M.C. 102).
[Real J. : On my examination of the cases I do not find it any-
where suggested that no duty is on a wife.]
She owes no duty unless delegated, for the husband has charge
■of the child in law.
[Real J. : The question whether either prisoner had charge or
oontrol of the child is, I am inclined to think, a question of fact,
and here the evidence shows that both had charge. But apart
from the evidence it seems to me that a duty was also imposed
■on the woman.]
There is no evidence that the death of the child was caused by
neglect of duty. The jury found a general verdict. Four causes
for death were alleged. If evidence had been given on all, the
general verdict would be good, but the evidence did not establish
aU as against each of the prisoners, and the general verdict cannot
stand. R. v. Morby (1882, 8 Q.B.D. 571). The doctor's
■evidence is that it is impossible to say definitely what caused
•death. The direction re calling in medical evidence was wrong.
There was no duty on either prisoner to seek medical aid.
Necessaries of life do not include medical aid. The Criminal
516 QUEENSLAND JUSTICE OF THE PEACE.
Rex v. Angus Qq^ gg 25 285, 286, and the offence does not fall within s. 286,
MaCDONAM) and J > ! ;
Floba Maodonald Wilful murder was not distinguished from murder in the direction
to the jury. The Criminal Code, s. 8. The Judge was wrong in his
direction that the duty on the man and the woman were co-
extensive, in directing that as a matter of law the wife had charge-
of the child. Even assuming that the duties were the same,
there is no evidence to go to a jury of neglect to provide food,
clothing, or medical aid on the part of the woman, or of her
knowledge of the child's condition. There is no evidence that the-
death arose from any breach of duty. The direction of the learned
Judge was that the woman had a duty to perform, and the case-
went to the jury on the assumption that she was in law bound to-
provide medical attendance. That is not so in law, and in fact
her means to do so, or her knowledge of the necessity to do so,
was not proved. The conviction against the female prisoner
cannot stand.
The jury drew the inference that there was an intention to kUI
on the part of both prisoners from the mere fact of neglect. The
inference was not warranted. There was a divided charge, a-
divided duty, and divided neglect ; and it would be impossible
to say whose neglect led to the death of the child, and both
prisoners should be discharged.
Sir A. Butledge, K.C. : The evidence shows that the death was
caused or contributed to by the neglect of someone. The neglect
would be a breach of duty on the head of the house — the father.
Then did the female prisoner owe any duty ? The Legislature has
in recent years made great advances in matters relating to the care^
of children, and a duty is cast on every person having custody, con-
trol or charge of a child. The Criminal Code, s. 285. The Children'' s-
Protection Act of 1896, s. 1. R. v. Senior ([1899] 1 Q.B. 283)..
So in case of lunatics. Buchanan v. Hardy (1887, 18 Q.B.D. 486),
E. V. Porter (1864, L. & C. 394). The evidence warranted the
direction that the woman had charge — in fact, there was a joint
control, and at least partial control ; and if she had control she-
owed a duty. Facts and circumstances were proved which
justified the jury in coming to the conclusion that there was a-
course of conduct which was intended to produce death.
[Chubb J. referred to The Criminal Code, s. 324.]
R. V. Saunders (1836, 7 C. & P. 277) was decided on the first
count, and is of little utility. Russell on Crimes, 6th Ed., Vol. III.,
p. 15, note. He referred to R. v. Mahhett (1851, 5 Cox C.C. 339),
CEIMINAL EEPORTS, 1860-1907. 617
£. V. Gonde (1867, \Q Cox C.C. 547), R. v. Cook d> Cook (1898, ^^^^ "• ■^"""s
«2 J.P. 712), TAe Qweew v. Instan ([1893] 1 Q.B. 450), Woodcraft v. FLonrEoX)
McKenzie (1902, Q.W.N. 94), iJefifim v. S and Wife (1851,
5 Cox C.C. 279) ; Medical attendance is a necessary. The King
V. Brooks (1902, 5 Canadian Criminal Cases, 372).
Lukin, in reply : The principle of R. v. Senior ([1899] 1 Q.B.
283) cannot apply ; it rests entirely on s. 23 of 57 and 58 Vic,
■c. 41. In R. V. Brooks (1902, 5 Canadian Criminal Cases, 372),
no suggestion of any duty on the mother was made. He also
leferred to R. v. Chandler (1855, Dears. C.C. 453), R. v. Jones (1901,
19 Cox C.C. 678), R. v. Forsyth (1899, Cited in Arch. Criminal
Pleading, 22nd Ed., p. 751), Quinn v. Leathern ([1901] A.C. at p.
506), R. V. Gonde (1867, 10 Cox C.C. 547), R. v. Cook and Cook
<1898, 62 J.P. 712), The Queen v. Instan ([1893] 1 Q.B. 450, at
J. 452), The Queen v. Dowries (1875, 1 Q.B.D. 25).
Cooper C.J. :: The prisoners (Angus Ranald Macdonald and his Cooper C.J.
Tvife Florence Alma Macdonald) were convicted before Power J.,
at the February Criminal Sittings at Rockhampton, of the murder
•on the 31st October, 1903, of Grace Robertson Macdonald, a girl
■of 14 years of age, who was the daughter of the male prisoner by
■a, former wife. In March last the female prisoner brought the
■child from Brisbane to Longreach, where the male prisoner joined
them, and they aU went to Uradah, a selection belonging to the
male prisoner, which is fourteen miles from Longreach. The
■child was set to work without delay, and performed many of the
household duties, such as scrubbing floors, attending to the wants
■of the female prisoner's two young children — aged respectively
three and two years — milking the goats, feeding the dogs, cleaning
faiives. She was a robust and healthy girl when she arrived at
-the selection, but she died on 31st October covered with suppu-
rating sores ; her right wrist was disorganised, the skin had rotted
away, the ulna bone protruded through it about an inch and
6 half, and was carious ; the ligaments were all destroyed, and
the hand was displaced outwards, and could be moved about in
■any direction ; and a lot of the bone had come away. The skin
■over the left knee-cap was destroyed, and the whole of that bone
■was exposed. There were sores extending to the bones on the
soles of both feet, and the bones were carious. There were stones
and dirt in these sores after death, though the prisoners alleged
she had been a week in bed. On the right side the two floating
ribs were broken, one of them in two places, and there was a con-
518 QUEENSLAND JUSTICE OP THE PEACE.
Ebx v. Anotjs siderable amount of matter round two of the fractures, whichi
Floba Macdonald exuded when the skin was lanced after death. It would take-
Cooper C.J.
a sudden, quick, and very severe blow to break these ribs. The-
internal organs and coats of the stomach were normal, but wasted.
The body was very emaciated, and was two or three stone hghter
than it ought to have been. In the opinion of Dr. Hewer, the-
Government medical resident at Longreach, the cause of death,
was exhaustion, resulting, probably, from the drain on the system,
from these suppurating sores. He did not know the cause of the-
sores, but a person not fed properly would be more likely to break,
out in sores than one properly fed. The sores on the feet and wrist
had existed for six weeks or a couple of months. The ribs had.
been broken for at least three weeks, and would cause pain to the
child if she moved or did much work, as cleaning knives. If
the sores had been attended to in the earUer stages, there is no-
reason why they should not have been cured. Neither of the
prisoners ever called in medical aid, and there was no evidence,,
in the doctor's opinion, that the sores had ever been attended
to, except that a little boracic acid had been sprinkled on the-
wrist just before or after death. The female prisoner had been
a hospital nurse of three years' experience. Her own two children
were well dressed, and were well cared for, and quite healthy-
There was abundance of food in the house. A man who was
working for the prisoners for nine days after Grace's arrival saw
them at table on five separate occasions, but never saw Grace sit
down with them ; the other two children did, and Grace was
employed in attending to them. After the child's death, the male
prisoner attributed the sores to syphilis, but no trace of that
disease was found in the body. Both prisoners knew that
sjrphilis was a very serious disorder.
The selection was rarely visited by strangers ; the mailman
called twice a week, but never entered the house after March.
A man named Garth visited the place on business at the end of
June, and saw the child very poorly and hardly decently dressed,
in a bran bag and some sort of garment rouhd the upper part of
the body, with arms and legs bare. It was a cold and cloudy
day. The mailman (Poole) saw her in winter without boots,,
stockings, or hat, when it was so cold that he wore an overcoat
and rug. He saw her again on the second or third Wednesday
in September. She was very thin and miserable looking, and
seemed very frightened and in bad health. Poole was at the
house on the 27th and 28th October. No mention whatever
CEIMINAL REPORTS, 1860-1907. 519
was made of the child on either day. On the 9th Octolber a man 3^^ "• ^^^^^
Ti/r-iiT. 11 1 i TT 11 MACDONALDAND
named Miilburn callea at Uradah to report traveUing sheep, and Flora Maodonald
heard the female prisoner say to the child, who was cleaning knives „ ~^(, j
in the yard, " Hurry up and get that work done, or I'll come down
and hven you up a bit." The child was cleaning the knives with
her left haild, and was standing in the sun, and had no hat on.
She was dressed in an overall, spHt and full of holes, so that most of
her body was visible ; her feet were swollen and covered with
dirt, the skin peeling off and sticking up through the dirt. Her
eyes and eyeUds seemed full of matter, and there was a disagree-
able smell from her body. Miilburn thought she was a half-caste,
and had never seen any human being in such a condition, she
seemed all skin and bone.
On 3rd October the male prisoner told a man named Avery
that he had not been able to manage the girl, that he had beaten
her without effect, and was making arrangements to send her
away to a reformatory or industrial school. He said he had put
her on bread and water for three days, accused her of stealing
money and food, said he was altering his wUl, and was making
arrangements to disinherit her and turn her adrift. He made a
shockingly indecent and inhuman remark about the sores in her
body, and asked what Avery " thought of a child you could knock
down like a beast,'* and in a few minutes afterwards she would
get up and repeat the offence." Under the will of the male
prisoner's first wife he was appointed executor and sole residuary
legatee, whilst a sum of £200 was left to the deceased upon her
attaining 21 years or marrying. In 1896, the male prisoner
appears to have settled a pohcy of life insurance for £1000 in
favour of the deceased girl.
The female prisoner was examined at the enquiry into the causer
of death, and said that the child had no moral sense ; she could
not be worse than she was ; that she stole food from the
store, and she (the deponent) hid the key. She said, " We in-
tended all along to bring her in to a doctor. There was nothing
practical done towards bringing her in till the day of her death."
She said she first saw the wrist three weeks before the child's
death, but did not examine it till a week before that event, when
the child took to her bed. Power J. summed up to the jury, and
the following is his summary of his directions to them, and his
note of what followed : —
" In summing up to the jury I referred to s. 285 of The
Criminal Code as peculiarly applicable to the circumstances of this
Coopei C.J.
520 QUEENSLAND JUSTICE OF THE PEACE.
Eex v. Angds case, and said that both the prisoners, and particularly the father,
J'tpBAMiODONALD ^^ * spcolal duty to attend to the wants of the deceased. I told
the jury that parents were charged with the duty of nourishing
and protecting their children, and failure to do that might be
either wilful or deliberate, or might arise from carelessness and
neglect without being designed to any particular end. Neglect,
where there was no intention that death should ensue, was man-
slaughter ; but wilful neglect, coupled with ill-treatment and
absence of medical aid, would amount to wilful murder if by these
acts the jury were satisfied that it was contemplated by the
prisoners that death would ensue. If the object of the prisoners
was to kill the child by a slow course of torture, and a slow course
of neglect, it was murder. If there was no desire to kiU the child,
then it would amount to manslaughter only. If the prisoners
acted in concert, intending to produce death, then both prisoners
would be guilty of wilful murder. I asked the jury to consider
whether death was caused or accelerated by neglect or Ul-usage
by the prisoners, or either of them, and did they mean death to
be the result of their course of treatment. I also told the jury
that from the facts disclosed the absence of any attempt to obtain
medical treatment for the deceased was sufficient evidence to show
that death was much accelerated by neglect on the part of the
prisoners. After the jury retired, Mr. LuMn objected to my
directions as to the duty of the prisoners to attend to the wants of
the deceased, and asked me to re-direct the jury upon the omission
to obtain medical assistance for the deceased. I recalled the jury,
and told them that the fact that the prisoners did not caU in any
medical attendant might be evidence of neglect, but was not
necessarily so. It was for them to draw their own conclusions.
I did not want them to say that the fact that a medical attendant
was not called in was ergo neglect.
" The jury found both prisoners guilty of wilful murder, and I
passed sentence of death, but respited execution. At the request
of Mr. Lukin I reserved the following questions for the consider-
ation of the Court : —
"1. Whether there is any evidence of a legal duty on behalf of
the female prisoner, and a neglect of any legal duty
which caused or accelerated the death of the deceased ?
" 2. Whether there is any medical evidence upon which the
jury were justified in arriving at a conclusion that
death arose from any neglect of any duty ?
CRIMINAL REPORTS, 1860-1907. 521
' 3. Whether my direction was correct that both of the ^=^ "• ^•"*»*
. . , , ,.,,,., Maodonald and
prisoners, as a matter of law, particularly the father, Floba Maodonald
had a special duty to attend to the wants of the
deceased, and a neglect of that duty by either or both,
resulting in death, made the one or both guilty of
murder or manslaughter, according to circumstances ?
" 4. Whether my direction was correct that the fact of the
prisoners not calling in medical assistance might be
evidence of neglect, but was not necessarily so ? "
As to the third question, Mr. Lukin has contended that the
female prisoner had no duty to attend to the wants of the
deceased, in calling medical aid, and that on the direction of Power
J. the jury might have, improperly, found her guilty of neglect
in that duty. He also, in his reply, contended that by the
language of his objection he must be taken to have meant that the
jury had not properly considered the question whether or not
the female prisoner ever had charge of the deceased. But I think
it quite clear that what he intended, and what was understood,
was that the learned Judge ought to have directed the jury that
no duty was cast upon her, because the law imposed the charge of
"the child upon the father, and as he was present, no duty devolved
■on his wife to provide her with food, clothing, or medical attention.
I am clearly of opinion that it was assumed by both Judge and
jury that there could be no question on the evidence that the
Jemale prisoner had, in fact, charge of the child in the ordinary
and grammatical sense of the expression. The female prisoner
iad, according to her own account, briought the child from Bris-
bane at the suggestion of her (the prisoner's) mother in order
to take her out of the way of temptation, employed her in all
household duties, set tasks for her, assumed the control of her
actions, and, in the earlier months of her residence, attended to
her ailments, and cured them. Under these circumstances I can-
not think it open to question that the female prisoner had charge
of the child. Whether one person has charge of another is a
question of fact, unless the law, as in the case of a father, imposes
the charge. My chief difficulty in this case has been to keep my
judgment unbiassed by, the feehng of sympathy with this
"unhappy child in her trials during the last months of her life. Never
seemg any children of her own age, or any visitors, living in a lonely
house in the bush, far from any other habitation, with her father
and stepmother, both of whom were suspicious and unsympathetic,
covered with sores, neglected, locked out from the storeroom
Oooper C.J.
622 QUEENSLAND JUSTICE OF THE PEACE.
Eex v. Anotis \^rh.ere the food was kept, placed in such circumstances' that sh&
Maodonald and r ' tr
Floba Macdonald stole food, as the prisoners allege, whenever she could, and drant
CooDerC J *^® ™^^^ intended for a dog, harried to work when any move-
ment must have caused considerable pain, she was indeed a piti-
able object. The picture of this helpless child attending to her-
own sores and binding up her decaying wrist, apparently to save-
the bones that were dropping away, is one that in pathos and
horror is unparalleled in fiction. But I believe that I am able-
to take a dispassionate view of the questions of law involved in
the case ; otherwise I should not think it proper to offer any
opinion at this stage.
Wilful murder is the unlawful killing by any means of one person
by another, with the intention to cause his death. The ways in
which death may be produced are numberless and indefinable..
If any person, intending to cause another person's death, pursues
towards him a course of conduct which causes his death, he is guilty
of wilful murder ; and any other person acting in concert with him,,
with the same intention, though not necessarily participating in
every act of that course of conduct, is equally guilty.
The prisoners had charge of the child ; there is abundant
evidence that she was unable to withdraw herself from such charge,
and that she was unable, from want of opportunity, to provide
herself with the necessaries of life. Under these circumstances
the prisoners were both bound, by s. 285 of The Criminal Coder
to provide her with such necessaries. There was sufficient food
in the house at the disposition of the female prisoner, and there-
was a sufficient supply of clothes suitable for a girl of Grace's-
age. Medical aid, under certain circumstances, is one of the-
necessaries of Hfe, and if the jury believed the medical witness,^
there was convincing evidence that it was so in this case. It was-
the prisoners' duty, therefore, to provide medical aid, food, and
clothing, not according to any exaggerated opinion of supersensitive-
or over-refined persons, but according to the plain common-
sense ideas of ordinary English people. It was clearly the duty
of both prisoners to use efforts reasonable for persons in their-
position to secure necessary medical assistance, and if the male-
prisoner neglected to do so, and the female prisoner, intending^
to cause death, purposely refrained from any attempt either tO'
induce him to send for a doctor, or to procure a doctor's assis-
tance herself, she was guilty of murder if death was the result-
of such negligence. All the facts were before the jury. The-
female prisoner had deposed at the inquiry : —
CEIMINAL REPORTS, 1860-1907. 523;
" Mr. Macdonald and I never discussed the cause of her sores. ^=* "• -^on*
We have mentioned that the cause might have been syphiUs. I Floba Macdonald-
knew that syphilis was a deadly disease. We intended all along „ „ ^
, T 1 , . , . Cooper C.J.
before she died to brmg her m to a doctor. There was nothing
practical done towards bringing her in to a doctor until the da;y
of her death. We did not bring her in to a doctor before her
death."
The jury knew that there were two resident doctors at Long-
reach, 14 miles from prisoner's selection ; that on a former occasion
the female prisoner had taken one of her own children, when ill,
to one of the doctors, and had even taken it to Brisbane for the
benefit of its health, and yet there was no evidence that either of
them made any attempt to secure the services of a medical man,
though there is a mail twice a week between the two places, and
the male prisoner had horses and a buggy. There was evidence
that the female prisoner kept food locked away from the child ;
that the latter was insufficiently clad ; was made to work when
any movement would cause her pain ; that her sores were not
attended to in any way, though the female prisoner was a hospital
nurse ; that no reasonable efforts were made to secure medical aid
by either prisoner ; that the male prisoner had beaten the child,
that two of her ribs were broken by a sudden and very severe blow,
and neither prisoner did anything to alleviate the pain caused
thereby ; that both prisoners bore ill-will to the deceased, and
there was some evidence of a gain to both by her death.
I think these facts are evidence of conduct pursued by the
prisoners acting in concert, and that death was caused or accelerated
by such course of conduct. The jury found that it was wilful on the
part of both prisoners. I think the direction of Power J. was lucid,
impartial and accurate, and such as one should expect from a Judge
of his learning, experience and humanity, and I am of opinion that
there was ample evidence to justify the findings of the jury. I
think the conviction should be affirmed.
Real J. : The Chief Justice has sufficiently set out the case Real J_
submitted to us, and I do not wish to add anything to his statement
of the facts, and would add nothing to his judgment were it not
for the importance of the question of law raised as to the meaning
of s. 285 of the Code and s. 1 of The Children's Protection Act of
1896. The learned Judge before whom the case was tried, in
summing up to the jury, referred to s. 285 of the Code as peculiarly
apphcable to the circumstances of the case. That section is in the
•624 QUEENSLAND JUSTICE OF THE PEACE.
j^" "■ ^^°^^ following words : — " It is the duty of every person having charge
.Floba Macdonald of another who is unable, by reason of age, sickness, unsoundness
EeaJj ^^ mind, detention or any other cause, to withdraw himself from
such charge, and who is unable to provide himself with the
necessaries of Ufe, whether the charge is undertaken under a
contract, or is imposed by law, or arises by reason of any act,
whether lawful or unlawful of the person who has such charge,
to provide for that other person the necessaries of Ufe, and he is
held to have caused any consequences which result to the hfe or
health of the other person by reason of any omission to perform
that duty."
The direction of the learned Judge to the jury concerning the
duty of parents to their children must, I think, be considered as
referring to the duty of the prisoners towards this child, bearing in
mind the provisions of s. 285, to which he had referred as pecuharly
applicable to the case, and therefore referring to parents who
were, within the meaning of that section, in charge of the child.
At the commencement of the argument before us I directed the
attention of counsel for the prisoners to the importance of deter-
mining the question of whether the prisoners had, within the
meaning of s. 285, the charge of this child, and pointed out that I
saw nothing in the section which precluded the jury from finding
that both of the prisoners were in charge of the chUd, and that,
in the view I took, some person other than the father might be
found to have charge, even while the father resided in the house,
unless from the decided cases, or for some other reason which
might be advanced, we ought to give to the words of this section
a meaning not in strict accord with its ordinary and natural
meaning.
In the conduct of this case before the jury, it appears to me not
to have been seriously disputed that both prisoners were in charge
of this child as a matter of fact, if, as a matter of law, the mother
or any other person could be in charge of a child whilst the father
at the same time had control.
The discussion which has in the course of this argument been read
to us as having taken place between the learned Judge and the
counsel for the prisoners, during the trial, conclusively shows this.
Particularly is it shown where the Judge asked counsel, " Do you
contend that when the father was out on the selection, or away
from the selection, and the child remained at home with the female
prisoner, under her control and management, she was not in charge
of the child," and counsel answered " Yes, even then, as the father
CRIMINAL REPORTS, 1860-1907. 525-
was the head of the house and in charge." I do not think there ^^^ "• ^"""^
, . . . , , , J 1 ; 1 . , , Maodonald and
is anything m the case to suggest that the question whether the Floba Maodonald-
child was, or was not in charge of the prisoners, was treated by e~T"i
the Judge as not being a question for the jury. In the conduct
of the case the question of charge was no doubt treated by all —
the learned Judge, the counsel for the Crown, and the counsel for
the prisoners — as conclusively proved, if in law both prisoners
could be held to have charge at the same time, and if a wife
could be by law in charge of a person in conjunction with her
husband. There was nothing wrong in treating the case in this
way if the counsel for the prisoners and the Crown and the Judge
thought the evidence reliable and sufficient to prove the facts.
Such a course did not take the matter from the consideration of
the jury ; it merely intimated to them that the Judge and counsel
considered the evidence sufficient to prove the fact. The child,
being a female under 16 years of age, was in a special manner
under the protection of the law, for s. 1 of The Children's Protection
Act of 1896 says :: " Any person who, having the custody, control,
or charge of a child, being a boy under the age of fourteen years,
or being a girl under the age of sixteen years, wilfuUy ill-treats,
neglects, abandons, or exposes such child, or causes or procures
such child to be iU-treated, neglected, abandoned or exposed in a
maimer likely to cause such child unnecessary suffering or injury
to its health, shall be guilty of an offence within the summary
jurisdiction of justices, and on conviction thereof, in manner
provided by The Justices Act of 1886, shall be liable, at the dis-
cretion of the Court, to a fine not exceeding £25, or alternatively or
in default of payment of the said fine, or in addition thereto, to
imprisonment for any term not exceeding six months." If,
therefore, this child was in charge of the prisoners they were, and
each of them was bound under s. 1 of the last-mentioned Act, not
to neglect her " so as to cause her unnecessary suffering or injury
to her health," and, under s. 285 of The Criminal Code, to provide
her with the necessaries of life when she was unable to provide
the same for herself, and unable to withdraw herself from their
charge. The two last-mentioned considerations are, of course,
like the question of charge, questions of fact for the jury in every
case, but the evidence thereon in a particular case may be such
that neither the Judge, nor counsel for the Crown or prisoners
would treat them as other than admitted, and in the conduct of
this case they were so treated.
As to whether husband and wife can be in charge of a person
526 QUEENSLAND JUSTICE OF THE PEACE.
Bex v. Angus at the same time, I have akeady stated my view, apart from any
Macdonaldand , , ■ , ,,n ,
SlokaMacdonald reason why a different construction should be put on the words of
^r~r, s. 285 of the Code, and on s. 1 of The Children's Protection Act of
Beal J. '
1896. Nothing has been brought before us to cause me to alter
that opinion ; indeed, the cases are in support of that view.
Buchanan v. Hardy (1887, 18 Q.B.D., 486), R. v. Cook and Cook
(1898, 62 J.P. 712). And there can be, I think, no possible ground
for sajdng that in this case, during the absence of the husband,
and even, so far as the evidence before us goes, during his presence,
the charge and control of the child was not in the female prisoner.
The evidence shows that when the male prisoner was present the
female prisoner exercised a joint control with him over the child,
and when he was absent the child was under the sole control of
the female prisoner. Apart from common law, therefore, both
prisoners were bound, by the express provisions of s. 285 of the
Code, to provide her with necessaries of Ufe. If, therefore, any
neglect on part of the prisoners, or any omission to provide the
necessaries of life to the child caused her death, the jury could
find the prisoners guilty of wilful murder, if there was evidence
of intention to kill by such neglect or omission, and it would not
be necessary to deal further with this case than to say the acts of
neglect and omission to supply necessaries referred to by tha
Chief Justice are sufficient to warrant the finding of the jury by
reason of the duty imposed on them as persons having charge of
this child under the circumstances shown in the case. I think it
right to add that, apart altogether from these sections, there was,
in my opinion, sufficient evidence of acts done by each of the
prisoners, coupled with omissions of common law duties, to warrant
the finding of the jury against either of the prisoners, without
reference to the acts of the other prisoner. The evidence, more-
over, is of such a nature that the jury were entitled to come to
the conclusion that the prisoners, in dealing with this child, acted
in conjunction and for a common purpose, and, consequently,
each is rendered liable for the acts of the other. On that ground,
also, the evidence was sufficient to warrant the finding of the jury.
But it was argued by counsel that in this case, as the jury, on the
evidence adduced, could have found either of the prisoners guilty
on the ground of acts done by that prisoner alone, without refer-
ence to the question whether they thought the prisoners had acted
in a way that would make each responsible for the acts of the
other, and as the jury merely found them guilty without finding
.any specific fact on the question of whether or not the prisoners had
CRIMINAL REPOETS, 1860-1907. 527
acted so as to make each responsible for the acts of the other ; and ^^^ '"■ Anqcb
as the direction, of the Judge with respect to the procuring of FLo^RrMAo'DONALD
medical assistance was in such terms that the jury could have
iound the female prisoner guilty by reason of that act of neglect
alone, and without reference to any action by her in conjunction
-with the male prisoner, and could have found her guilty of this,
notwithstanding that they found in her favour with respect to the
■other acts and omissions alleged against her, and as there was no
■evidence to show that she had the means to procure medical
iissistance, then the jury were not entitled to find her guilty on
that ground alone in the absence of affirmative evidence that she
had the means to obtain medical assistance. Had the verdict of
the jury against the female prisoner been manslaughter I would
have been in great difficult}' how to decide that point, as, in my
■opinion, it would depend on the question of burden of proof. But
the verdict was wilful murder, and the jury must have found that
she wilfully omitted to do anything that would tend to prolong life,
.and that she was acting in concert with her husband in respect of
not procuring medical assistance. For these reasons I agree with
the judgment of the Chief Justice that the conviction and judg-
ment must be affirmed.
Chitbb J. : The facts of this case have been so exhaustively Chubb J.
dealt with by the learned Chief Justice, that I will not do more
than briefly refer to them where necessary. The prisoners were
the father and stepmother respectively of the girl with whose
murder they were jointly charged, and whose age was between 14
and 15 years. The parents resided at Uradah, a selection 14 to 15
mQes from Longreach. It was a lonely place ; the nearest resi-
dence was three miles away, and the next nine miles away. It
was very rarely visited by any person except the mailman twice
a week. The only persons at Uradah were the prisoners, their
two young children, and the deceased. No servant of any kind
was kept. In March, 1903, the deceased, to all outward appear-
ance a strong, robust girl, was brought up from Brisbane by the
iemale prisoner to Uradah. In seven months she was dead. The
appearance of the body after death according to the medical evi-
dence has been given in detail by my learned brother, the Chief
Justice. That evidence is not as satisfactory to my mind as it
might have been, but it is sufficient to establish that the cause of
death was exhaustion, caused by the drain on the system from
the suppurating sores from which the girl was suffering, although
528 QUEENSLAND JUSTICE OF THE PEACE.
Rex v. Ansus the cause of the sores could not be fixed by the doctor : that some-
MACDONAIiD AND J ' '^'^
Floba Maodonald of these sores on the body had been in existence for at least three
Chubb^J weeks, and those on the feet and wrist from six weeks to two
months ; that for some time before death the girl was unable to
take care of herself or to use her hand or feet without a lot of pain ;
that the sores could have been surgically and medically treated,
and if attended to in the earlier stages, and by proper treatment
in the earlier stages, prevented from reaching the stages they
attained. There was no reason why they could not have been
cured. There was no evidence that the sores had been treated, or
that a person in Hi-health is likely to break out in sores. The body
was in an emaciated state, and looked Uke that of a child that had
been neglected. No medical assistance was called in by the
prisoners. At the trial, at the close of the case for the Crown, the
prisoners' counsel asked the Judge for a direction that there was
no evidence to go to the jury of any neglect of duty on the part of
the female prisoner, nor any evidence of either murder or man-
slaughter against her. The learned Judge refused. He then
directed the jury, and on their retirement prisoners' counsel ob-
jected to part of the direction relating to the duty of the prisoners.
The learned Judge then recalled the jury and redirected them.
The prisoners were found guilty, and the four questions stated in
the case were, on the application of prisoners' counsel, reserved
for consideration by this Court. (His Honour then read that part
of the summing up by Power J. which is set out in the judgment
of Cooper C.J. at pp. 519-521).
The law of this State as to the crime of wilful murder is now
declared by The Criminal Code. Section 301 defines the crime.
It is necessary to prove an intention, by the person unlawfully kill-
ing another person, to cause the death of the person killed, and kill-
ing is causing the death of another directly or indirectly by any
means whatever (s. 293). When an act is done or an omission
made by a person which hastens the death of another person
when labouring under some disorder or disease arising from another
cause, that person is deemed to have kiUed that other person
(s. 296). A motive is immaterial (s. 23). The jury have found
here both the killing and the intention against both prisoners.
The prisoners' counsel have objected to the direction of the
learned Judge on the ground that he directed the jury that both
the prisoners had a duty equally to attend to the wants of the girl
— namely, to provide and supply food, clothing, and medical
assistance if necessary — whereas he should have told them there
CRIMINAL REPORTS, 1860-1907. 529
■was no duty in the wife under the circumstances at all, because jP^^ "• '^'"*"^
the husband being always at home the whole duty was imposed Flora Macdonald
on him. The question of providing in the sense of procuring ciTbb J
the food and clothing may be eUminated from consideration,
because on the evidence it was in the house. The learned Judge
read s. 285 of the Code to the jury, after an argument by the
prisoners' counsel as to whether the girl was, or could be in charge
of both prisoners at the same time. In the addresses by counsel to
the jury and the summing up, no reference appears to have been
made to the question of charge. Whether a person is in charge
of another is a question of fact. In this case, as no question was
left to the jury on that point, the jury having heard the argument
of counsel upon it, it was a simple one. I think it must have
been assumed all round that the jury could find as a fact that the
girl was in charge of both prisoners, if in law she could have so
been. The girl was the daughter of one and the stepdaughter
of the other prisoner. She lived in the house with them. She
performed menial duties, and whether we regard the question
as one of parent and child, or of master or mistress and servant,
or even as of a person assuming or undertaking charge, there
was sufficient evidence in my opinion on which thfe jury could
find as a fact that the girl was in charge of both prisoners within
the meaning of s. 285. The Code does not pretend to be exhaustive
of the common law. And outside the Code there may be common
law duties which might be caUed in aid. I think, however,
for the purposes of this case, s. 285 is sufficient. There was also
evidence that the girl was unable, by reason of sickness, ignorance
of where to go, and want of the opportunity of going, and tender
years, to withdraw herseK from such charge, and that she was
unable to provide herseK with the necessaries of life. There
arose, then, a duty on the prisoners to provide for the girl the
necessaries of hfe. What were those necessaries ? In this case
it is admitted that food and clothing were two of them, but it is
denied that medical aid and remedies were. There was plenty
of food and clothing in the prisoners' house. In that respect,
therefore, the duty in regard to the providing in the sense of
procuring food, whosoever it was, to the girl was discharged.
But the food and clothing must be supphed, given, or adminis-
tered. Whose duty was it ? On the evidence here primarily
the wife's ; but if she neglected her duty, then the husband's. He
is not excused by her neglect if he knew of it, and nevertheless
permitted her to continue in that course. R. v. Bubb and Hook
530 QUEENSLAND JUSTICE OF THE PEACE.
?'loba Macdonald should die, to accelerate her death, deliberately withheld the food
Ghiibb J ^^^ clothing from her, and he knowing of her intention and
assenting thereto, stood by and knew that these necessaries were
so withheld, and the death of the girl resulted from, or was
accelerated by, such withholding, they would both be guilty of
wilful murder. Here, however, the eAddence does not show
■distinctly that the death resulted from starvation or insufficiency
of clothing. The medical witness did say that, assuming the girl
in March was healthy and robust, and ate heartily, he would not
expect to find the sores, and that a person not fed properly would
be more Ukely to break out in sores than one who was properly
fed, but he ascribes another possible cause for the sores — namely,
struma, for which the prisoners could not be liable. Therefore,
I do not think there was sufficient evidence to justify the jury ia
finding that the death resulted from or was accelerated by with-
holding food and clothing.
Now as to medical aid. Is that a necessary of life ? That it
might be in such a given case was so held in R. v. Senior ([1899] I
■Q.B. 283). In The King v. Brooks (1902, 5 Canadian Criminal
Oases 372), the necessaries of life are stated to be such necessariea
as tend to preserve life. I think it is common knowledge, and,
I think, 'common sense, that medical aid and remedies promptly
applipd and administered do tend to, in many cases, prolong,
if not altogether preserve, life. In this case the medical evidence
was that proper treatment of the girl in the earlier stages could
have prevented her from reaching the stage she did, and that
"there was no reason why she should not have been cured ; that
"the life of the girl could have been saved if the witness (Dr.
Hewer) had been called in two or three months before death ;
that treatment by a competent person would have prolonged Ufe.
Clearly, therefore, here medical aid and remedies were necessaries
of Ufe, as held in Rex v. Senior ([1899] 1 Q.B. 283), The King v.
Brooks (1902, 5 Canadian Criminal Cases 372). Now, could the
jury here reasonably on the evidence find that the death of the
girl resulted from or was accelerated by the absence of medical
aid a.nd remedies ? I think on the medical evidence it is incon-
trovertible that they could. Then, whether you regard the
prisoners as parents or as persons in charge of the girl, the question
is, could they have provided or procured them ? The father,
undoubtedly yes ; there was sufficient evidence of his means
and ability to do so. If he then, as a reasonably careful parent
Chubb J.
CRIMINAL REPORTS, 1860-1907. 531
or person in charge, with the knowledge of the ski's condition ^^^ "• ^'^'^^^
,.,, jT_iji i, 11, f Macdonald and
-which he unaoubteoly must have had, ought to have provided. Flora Macdonald
but abstained from providing that necessary medical aid and
assistance, he was guilty of a neglect of the duty imposed on
him by s. 285, and if with intent that the girl should die, or her
•death be accelerated by such abstinence, he wilfully and dehber-
ately refrained from caUing in such medical aid, he would be
.guilty of wilful murder. Was there evidence here on which the
jury could find this ? I think there was, as pointed out by the
learned Chief Justice, and therefore, as regards the husband,
-the conviction was right. Then, as to the wife, the case was
^ut to the jury by the learned Judge as one of concert between
her and her "husband, whether they intended to kill the child by
a slow course of torture and a slow course of neglect, " by wilful
neglect coupled with ill-treatment and absence of medical aid,"
■contemplating that death would ensue. She had been a hospital
nurse for three years, and may be presumed to have had some
knowledge of human ailments beyond that of the ordinary
person. She had attended to the sores of the girl at one time,
and they had been healed. When they broke out again, she knew
then from experience that they were amenable to treatment. If
she had treated them as before, either they would have healed
again, or they would not. In the latter case, from her experience
she would and should have known that medical skiU greater than
that she possessed was required. What then was her duty ?
Plainly, to tell her husband, as the husband was there. It might
not be her duty to write or go to Longreach, or to send word by the
mailman, apparently the only person available. She knew there
■were two quahfied men there, and she had obtained aid from one
of them previously for one of her own children. She said she told
her husband of the sores a week before the death of the girl, and she
and her husband between them maintained one cause for them—
namely, a loathsome disease — and she added that nothing practical
Tvaa done towards bringing her to a doctor until the day of her
■death. The difficulty of the case lies in the fact that the jury
have found that she and he did the acts and made the omissions
T(ith intent to kiU. In this view the duty lay on the husband to
•call in the medical aid. If he deliberately abstained from so doing
^th intent to kill or to accelerate the death, then he, as I have
aheady said, would be guilty. She also would be guilty as a
participant, if it can be shown that she participated in the act or
omissions. Could the jury infer from the whole case, from the
532
QUEENSLAND JUSTICE OP THE PEACE,
Chubb J.
Bex v. Anous conduct of both, that the abstention to call in medical aid was
Maodonald and
FloeaMaodonald expressly or tacitly agreed upon between them, and was a part
of the course of action determined upon from the first or developed
as time went on — ^namely, the deprivation of food and clothing-
and medical aid, and that the male prisoner deliberately abstained
from calling in the medical aid with the assent of the female
prisoner, both desiring and intending the death or acceleration
of the death of the girl ? If they could, she also could be found
guilty. The case at this point presents features not without
difficulty, but on the whole I think there was evidence from
which the jury could draw the necessary inferences against the"
wife. I think, therefore, that in her case also the conviction was
right, and that the judgment against both prisoners should be
affirmed.
Power J.
Power J. concurred.
Conviction affirmed.
Sohcitors for the prisoners : Chambers, Bruce cfc McNai, for
J. K. Gannan, Longreach.
The Crown Solicitor.
1904.
20th July.
Real J.
Noel A.J.
[Pull CotrET.]
REX V. PEARCE.
[1904 S.R.Q. 243 ; Q.W.N. 72.]
Criminal law — False pretences.
On an indictment for obtaining money by false pretences, it was proved that the
prisoner obtained £20 from P. by representing, first, that he was selling P. a share
in an existing registered company ; and, secondly, that a certain firm of engineers
of whose business capacity P. held a good opinion, had taken ten other shares in
the company. No company of the name given was in existence or had been
registered. The statements were false, the defendant knew them to be false, and
P. took and paid for the share on a belief that they were true.
Hdd, that the first representation was a false pretence, and that the prisoner
was rightly convicted.
Ceown Case Resebvbd.
This was a special case stated under s. 668 of The Criminal
Code by Mansfield D.C.J. :—
^ " The prisoner was tried before me at the Brisbane Sittings
CRIMINAL REPORTS, 1860-1907. 683
of the District Court on 11th July, 1904, and was defended by Mr. ^"^ "• P'^oe.
Pritchard.
"The indictment charged the prisoner with having obtained
a sum of £20 from a man named Charles John Purdie by falsely
pretending that a company named the Albion Motor Car Company
•of Australia Limited, was a genuine company, duly floated and
registered in the Supreme Court, Brisbane, and that the firm
■of Messrs. Evans, Anderson, and Phelan, engineers, of Kangaroo
Point, Brisbane, had taken ten twenty pound shares in the said
company, and that he (the prisoner) had just come from them.
" Purdie proved that the prisoner had, on 19th February, 1904,
asked him to buy a twenty pound share in the Albion Motor Car
Company of Austraha Limited, and had stated that that company
was a genuine company duly floated and registered at the Supreme
Court, Brisbane, and that he had just come from the firm of Messrs.
Evans, Anderson, and Phelan, the big engineers on Kangaroo
Point, and that they had just bought ten shares, two hundred
pounds worth. Purdie fiu^her stated that he was induced by
these statements to pay the prisoner £20 for a share in the said
■company on 20th February, 1904.
" Evidence was called proving that no company bearing the
name of the Albion Motor Car Company of Austraha Limited
was or had ever been registered in Queensland.
" The Registrar of Firms for Queensland proved that on the
29th February, 1904, the prisoner appHed to him to register a
■company called the Albion Motor Car Company of Austraha under
the Registration of Firms Act, and that he, at the prisoner's
•dictation, had filled in an appHcation form, giving the names of
three persons Kving in Glasgow as directors and other particulars.
" This witness also stated that the prisoner had told him he was
the sole proprietor of the company in Queensland, and that the
prisoner afterwards appMed to withdraw his apphcation on the
grounds that the names of the directors given were incorrect,
and that he had done no business. This witness also proved that
this company was never registered under the above Act.
" John Evans, senior partner in the firm of Messrs. Evans,
Anderson, and Phelan, engineers, Kangaroo Point, Brisbane,
stated that it was not true that his firm had bought ten shares in the
Albion Motor Car Company of Austraha Limited. His firm were
not and never had been the holders of any shares in that company.
" Thomas Prowse proved that, on his stating to the prisoner that
he had a warrant for his arrest for false pretences in connection
534 QUEENSLAND JUSTICE OF THE PEACE.
> Ebx v. Pbaeob. -vpitli the Albion Motor Car Company of Australia Limited, prisoner
said, ' That cannot be. There is no such company ; I am running,
the thing myself.'
" At the close of the case for the Crown, Mr. Pritchard intimated,
that he would call no evidence, and applied to me to direct the
jury to find a verdict of not guilty on the ground that, on the
authority of R. v. Williamson (1869, 11 Cox C.C. 328), the evidence
adduced would not sustain an indictment for false pretences.
" I refused, and Mr. Pritchard then asked me to reserve this
question for the opinion of the Full Court.
" The question for the Court is whether the evidence detailed
above wiU sustain an indictment for false pretences."
The prisoner was convicted, and sentenced to twelve calendar
months' imprisonment with hard labour, but the execution of the-
sentence was respited until the decision of the Full Court should
be given.
Walsh, for the prisoner : The statements made by the prisoner,,
even if false, are not of a character to sustain an indictment for
false pretences. There is no evidence on which the jury could
find intent to defraud. The indictment is laid under The
Criminal Code, ss. 426, 427*, and although the actual words of
the sections are wide enough to include this case within their
purview, yet it is submitted that some hmitation as to what cam
be considered a false pretence must be m.ade unless every false-
statement made in the way of business is to be taken to be -withini
the meaning of these sections and a ground for a criminal prose-
cution. The, Larceny Act of 1865, s. 93 (29 Vic, No. 6, repealed
by the Criminal Code). Beale's Cases on Criminal Law, p. 48.
The subject matter of this case was one for an action for false
representation, not for a criminal prosecution. In spite of the
false pretences, the prisoner need not necessarily be guilty of a
criminal offence, and in this case he is not guilty. R. v. William-
son (1869, 11 Cox C.C. 328), The Queen v. Watson (1857, 27 L.J,
M.C. 18), R. V. Evans (1862, 9 Cox C.C. 238).
* The Criminal Code, a. 426 : Any representation made by words or otherwise-
o£ a matter of fact, either past or present, which representation is false in fact,
and which the person making it knows to be false or does not believe to be true,
is a false pretence.
Section 427 : Any person who by any false pretence and with intent to defraud,
obtains from any other person any thing capable of being stolen, or induces any
other person to deliver to any person anything capable of being stolen, is guilty
of a crime . . . It is immaterial that the thing is obtained, or its delivery
induced through the medium of a contract induced by the false pretence. . .
CRIMINAL EEPOETS, 1860-1907. 535
' [Real J. : This is the converse of The Queen v. Watson (1857, ^^^^ «^arce.
27 L.J. M.C. 18). In that case it was urged that the Court was
bound to convict ; here, that the Court was bound to direct an
acquittal.]
Secondly, this case should never have been left to the jury,
for the evidence does not establish any intent to defraud. The
evidence is aU consistent with, a bona fide and honest attempt
on the prisoner's part to float a company, and his statements
amount to nothing more than injudicious and exaggerated puffings.
He also referred to B. v. Kilham (1870, 39 L.J. M.C. 109), Rex v.
Williams (1836, 7 C. & P. 354).
Dickson, for the Crown : The cases relied on only show that
exaggerated representations as to value — being matters of opinion *
— do not amount to false pretences. R. v. Crabb (1868, 11 Cox
C.C. 85), Archbold, 22nd Ed., p. 570.
[Real J. : That does not seem sufficient distinction. In The
Queen v. Watson (1857, 27 L.J. M.C. 18), the statement by the
accused that he had a contract was false. As long as a person
reUes wholly or in part on a false representation, it is sufficient.
The case may be distinguishable on the ground that the prosecutor
did not part with his money, and the accused had not obtained
it, within the meaning of the statute. R. v. Evans (1862, .9 Cox
C.C. 238) was a case where the money taken was partnership
money, and it was decided on the grounds that the accused had
taken money of which he was part owner, and that there was no
intent to defraud, for the money could be taken into account on
adjustment of the partnership accounts.]
The conviction should be upheld ; the evidence was sufficient.
Real J. r The indictment charged the prisoner with having Beal J.
obtained £20 by means of false pretences, the prptences alleged
consisting of two statements : Firstly, that he was offering
for sale one share in an existing company which had been
actually registered in the Supreme Court, Brisbane ; and,
secondly, that it was a class of company in which shares had
been taken by Messrs. Evans, Anderson and Phelan, certain
persons' of whose business capacity the purchaser had a high
estimate. The latter part might be argued to be a matter of
opinion, and not of fact ; but the first part was a clear and
distinct statement that the company was an existing company,
and on the strength of the statement, the prosecutor purchased a
536 QUEENSLAND JUSTICE OF THE PEACE.
Bbx v. Peaece. sliare in the alleged company, and paid £20. There was at the time
BealJ. no company of that name in existence, and although some two
weeks later the defendant attempted to register a firm — not a
company — in a somewhat similar name, he did not succeed ;
there has been no attempt to register a company, and Messrs.
Evans, Anderson and Phelan did not take shares in any such
company or partnership. The statement was false ; the defendant
knew it was false ; and the prosecutor appears to have parted
with his money on the faith of that statement. The statement
had been made, and it was apparently a matter for the jury to
say whether it had been made for the purpose of obtaining the
money fraudulently. Now, the Court is asked to say that this was
not the class of statement which can constitute a false pretence,
* and several cases were strongly rehed upon, each of which was
supposed to limit the meaning of the words of the section. The
first case mentioned — Reg. v. Williamson (1869, 11 Cox C.C. 328) —
did not present evidence of intent to defraud. In the ease of
The Queen v. Watson (1857, 27 L.J. M.C. 18), the Justices had
directed the jury that if they believed the evidence, the prisoner
was guilty, and the question submitted for the consideration of
the Court of Appeal was, were the jury bound to find the prisoner
guilty ? In deahng. with that matter, the Judges decided that
money obtained by false representations to be advanced and given
as part of the capital of a firm was not money obtained by false
pretences within the meaning of the statute constituting the
criminal offence. In Reg. v. Evans (1862, 9 Cox C.C. 238) it was
similarly decided, and it was held that there was no intent to
defraud, as a partnership was shown to exist between the persons,
and the money obtained was not intended to become at once and
for all time the property of the person obtaining it, but would
afterwards become the subject matter of account between them
as partners. In both the cases cited the decisions of the Court
went on the relationship which existed between the parties,
and on the ground that the money obtained could be made
the subject of account between them afterwards. But nothing
of that kind exists in this case, which is in no way affected by the
cases cited. In this case there was a distinct statement by the
defendant that he had a share in a company for sale ; the company,
in fact, did not exist at all ; the prosecutor parted with his
money on the faith of that statement ; there was no relationship
between them, and the prosecutor was in no sense a partner.
I see nothing in the case to take it out of the ordinary considera-
OEIMINAL REPORTS, 1860-1907. .537
-tions applicable to false pretences. There might be a great ^^^ "• Peakce.
■deal in it had the Judge laid down that the jury were bound to Eeal J.
find the defendant guilty, as the evidence might have shown
that the prisoner's statements were merely an exaggeration,
dn which case it would have been open to the jury to find that they
were not made with intent to defraud. On the other hand, from
-the evidence placed before the Court, it was equally open to the
jury to find that the statement was false, that the prosecutor
^parted with his money in consequence, and that it was made with
intent to defraud. Therefore, the conviction must be upheld,
■and the learned Judge in the Court below was quite right in not
withdrawing the case from the jury.
Noel A.J. concurred. Noel A.J.
Conviction affirmed.
Solicitor for the prisoner : Sydney Pritchard.
Solicitor for the Crown: The Crown Solicitor.
[DisTEiCT Court, Bundabeeg.j
R. V. LYNCH.
11904 Q.W.N. 17.— Note.— See R. v. Judd (10 A.L.R. (C.N.> 73.1
Criminal law — Offence under The Post and Telegraph Act, 1901 1904.
(No. 12 of 1901), s. 114— Jurisdiction of State Court to try ut March,
offence — Crown Prosecutor — Authority of — To present informa- Mansfield D.C.J,
tion — Authorisation by Attorney-General of the Commonwealth.
Criminal Law.
At the District Court, held at Bundaberg on 1st March, 1904, an
information was presented by the Crown Prosecutor against the
.accused for unlawfully secreting letters -in the course of trans-
anission by post, an offence under s. 114 of The Post and Telegraph
Ad, 1901 (No. 12 of 1901). The Crown Prosecutor, in reply to the
learned District Court Judge, stated that he was not authorised
by the Attorney-General or the Governor-General to present the
information.
Mansfield D.C.J. : The offence with which the accused is Mansfield D.C.J,
■charged is constituted by s. 114 of The Post and Telegraph Act,
1901, an Act passed by the Parliament of the Commonwealth.
538
QUEENSLAND JUSTICE OF THE PEACE.
R. V. Lynch.
Mansfield D.C.J.
That Act repealed The Post and Telegraph Act, 1891 (Queensland
Statute, 55 Vic, No. 15), s. 105 of which is very similar to s. 114r
of the statute now in force. To unlawfully secrete letters in the
course of transmission by post is also an offence under our criminal
law (The Criminal Code, s. 165), but the punishment is greater
under the Code. It is to be noticed that the CommonwealtL
statute, in repealing the Queensland statute dealing with post and
telegraph matters, did not in express terms repeal the sections of
The Criminal Code treating with offences relating to posts and
telegraphs. By The Punishment of Offences Act, 190.1 (No. I4r
of 1901), jurisdiction was given to State Courts to try offences-
against the laws of the Commonwealth untU the establishment of
the High Court. By s. 68 of The Judiciary Act, 1903 (No. 6-
of 1903), a like jurisdiction is given to the State Courts, but s. 69-
provides that all indictable offences against the laws of the
Commonwealth shall be prosecuted by indictment in the name
of the Attorney-General of the Commonwealth, or of such other-
person as the Governor-General appoints in that behalf. The
Crown Prosecutor admits that he has not the authority necessary
under that section. It is possible, but I have some doubt on th&
question, that a prosecution may still be instituted under s. 165-
of The Criminal Code (The Constitution, ss. 52, 69, 108, and 109).
The accused will be discharged.
Counsel : King. SoUcitors : The Crown Solicitor ; Hamilton-
& Payne.
1904.
15th March.
Cooper C.J.
Real J.
Power J.
[Full Cotjet.J
R. V. JACOBS.
[1904 Q.W.N. 22.]
Criminal law — Practice-^Crown case reserved — Abandonment of
point reserved — Power of counsel to abandon — Necessity of
argument — The Criminal Code, s. 669.
Crown Case Reserved.
The prisoner was tried before Cooper C.J. on 16th February,.
1904, on an information charging him with stealing three guineas,,
the property of F. R. Schultz and another, or F. R. Schultz and
others, and was convicted and sentenced to a term of imprison-
ment. At the trial it was proved that the priaoneE- was the-
CEIMINAL REPORTS, 1860-1907. 539>
secretary to the Brisbane Waterside Union, and part of his duty ^- "■ Jacobs..
was to receive all funds of the Union and hand them over to the
treasurer, who paid them into the Government Savings Bank
to the credit of the trustees of the Union. F. R. Schultz was one
of the trustees. The Union was an association of more than
twenty persons having common objects, and was not registered
in any way. At the close of the case for the prosecution,,
Macgregor, on behalf of the prisoner, argued that the Brisbane
Waterside Union was an illegal association, and asked the learned
Judge presiding to direct the jury to return a verdict of not
guilty. This the learned Judge decUned to do, and at the request
of counsel, reserved the question, and stated a case for th&
consideration of the Full Court. The learned Judge directed
the jury generally on the law of stealing, and told them that if they
were satisfied that the money belonged to Schultz and another
or Schultz and others, it was not material whether or not they
held it in -trust for an association which is not recognised by the
law. The prisoner was convicted and sentenced to a term of
imprisonment, execution of the sentence being respited until
the decision of the FuU Court should be made known.
Stumm, for the prisoner, informed the Court that since the trial
counsel had carefully considered the point then taken, and on
which the case was stated, and had come to the conclusion that
on the authorities the law was settled [vide The Queen v. Stainer
(L.R. 1 C.C. 230), The Queen v. Tankard (1894, 1 Q.B. 548), R.
v. Hill (1900, 10 Q.L.J. 50)], and that as it would be useless to
argue the joint reserved, he did not wish to do so, and asked
that it be withdrawn.
O'Rourke, for the Crown : The Crown has no objection, and
do not intend the argue the case, but the question having been
raised and the case stated it is doubtful whether it can bo
abandoned. The practice in Victoria differs from the practice
in New South Wales. In the former State it seems that when
once a case is reserved it must be argued ; whereas, in, New
South Wales, it has been held that a counsel could rightly refuse
to argue a point reserved, and perhaps abandon it. He referred to
The Criminal Code, s. 669 ; Eeg. v. Taylor (6 W.N. (N.S.W.) 146),
%. V. Whitehead (3 A.L.R. (C.N.) 71), Reg. v. Matthews (12
N.S.W.L.R. 64), Reg. v. Gandispn (1 W. & W. 132), Reg. v.
Cawley (7 Q.L.J. 45).
MO
QUEENSLAND JUSTICE OF THE PEACE.
B. V. Jacobs.
Cooper C.J.
Beal J,
Power J.
Per Curiam (Coopeb C.J., Real and Poweb JJ.) : Neither the
counsel for the Crown nor for the convicted person desires to argue
the point reserved by the case, and under those circumstances
we do not think the Court is bound to hear and determine it.
The execution of the judgment which was respited pending this
appeal will therefore now take effect.
Counsel : Stumm ; O'Rourhe. Solicitors : McQraih db O'Neill ;
Crown Solicitor.
1905.
•6{/i, 7th June.
Cooper G.J.
Real J.
Power J,
[Full Coubt.]
R. V. WARTON.
[1905 S.B.Q. 167 ; Q.W.N. 65.— Note.— Case foUowed in R. v. Murphy (5
Q.J.P.R. 86.]
Criminal law — Murder — Evidence, admissibility of — Statement
made by deceased person in prisoner's presence — Deposition —
Dying declaration — The Justices Act of 1886 (50 Vic, No. 14),
ss. 72, 77, 104, 113.
On the trial of W. ou a charge of having wilfully murdered M., oral evidence
of statements jjmade by M. in jW.'s presence and taken"down in writing, was
tendered, and objection taken. The evidence was admitted and the prisoner
convicted. On a case reserved,
Hdd' that when such evidence is tendered, it is for the Court to decide whether
the surrounding circumstances are such that an inference that the prisoner, after
hearing the statements, substantially admitted the truth of the whole or some part
thereof, could be drawn by the jury from the silence, conduct, or demeanour of the
prisoner, or from the character of any observations or explanations he thought fit
to make ; and that unless there is some evidence to justify such an inference, the
statements should not be allowed to be given.
Held, further, that the surrounding circumstances showed that the evidence
objected to was properly admitted against W.
When, in the opinion of the Court, there is evidence sufficient to allow the
statements to be given to the jury, the weight of it and the inference to be drawn
are for the jury to determine.
R. V. 'Smith (1897, 18 Cox C.C. 470) approved.
Ceown Case Resbeved.
The prisoner was charged with wilful murder, and was found
guilty of murder at the May Criminal Sittings. He was sentenced
to death, but execution was respited pending the decision of a
point reserved for the decision of the Full Court.
CRIMINAL REPORTS, 1860-1907. 541
The following was the case stated by the learned Chief Justice : — ^- "• Warton.
The prisoner was tried before me at the May Criminal Sittings
in Brisbane on a charge of having wilfully murdered William
Munday. It was not disputed that the prisoner shot Munday at
Toowong on the evening of the 23rd March last, but no other
person was present at the time. Munday died at the Brisbane
Hospital on the morning of the 25th March of the wound inflicted
by the prisoner. The latter was arrested about half -past eleven
on the night of the 23rd, and was taken to the Hospital between
one and two on the morning of the 24th. He was taken into a
ward where WiUiam Munday was lying in a bed, who identified
the prisoner as the man who had shot him. Munday was then
sworn to teU the truth by Mr. Payne, the secretary of the Hospital,
who is a Justice of the Peace. The witness was questioned in
the presence and hearing of the prisoner by Inspector White, and
the answers were taken down in the form of a statement. The
prisoner asked Munday a number of questions, all of which the
witness answered. The statement was taken down in writing by
Inspector White, and was signed by Munday and by Mr. Payne.
A few minutes afterwards, after some consultation, Mr. Payne
charged the prisoner with shooting Munday with intent to kill him,
and the latter was again sworn, and gave evidence in the presence
and hearing of the prisoner. This was also taken down in writing,
and signed by Munday and Mr. Payne. These two statements
are not identical in words. The point of difference was elicited
by Mr. Power, of counsel, who defended the prisoner.
At the trial Inspector White deposed that he was able, by looking
at the first statement, to refresh his memory as to what took place
at the time and to repeat what was said by himself, by Munday,
and by the prisoner. Mr. Power objected, on the grounds that the
statement having been reduced to writing and signed by Munday,
oral evidence of its contents could not be given, and further that
the statement, though made in the prisoner's presence, was not
for that reason admissible against him, because it was taken
with formahties which rendered inapplicable the operation of the
rule that statements made in the presence of a party are admissible
in evidence against him. He referred to Phipson on Evidence,
Ch. XXI., ChM V. Grace (1825, 2 C. & P. 193), R. v. Turner
(1832, 1 Moody C.C. 347), B. v. MitcKell (1892, 17 Cox C.C. 503).
I overruled the objections. He then asked leave to cross-examine
the witpess as to the later statement made by Munday, and I
permitted him to do so.
J542 QUEENSLAND JUSTICE OP TIJE PEACE.
B. V. Wabton. Inspector White, being cross-examined, then said that Munday-
made two statements, the second of which was on oath after the
prisoner was formally charged with unlawfully shooting WiUiam
Munday with intent to kill him. He said that he took it down in
writing, that he had compared the two statements, which differed
very slightly, but were in the main exactly the same.
Mr. Power then took the further objection that as the two
statements differed, the later one superseded the earlier. I com-
pared the two written statements, but thought the discrepancy of
no importance. I overruled the objection, and admitted Inspector
White's account of what took place in respect of the first statement.
The second statement was afterwards tendered in evidence by
the prosecution, was objected to by Mr. Power, and, not being
pressed, was rejected.
On the appUcation of prisoner's counsel I reserved for the
■consideration of the FuU Court the question whether the evidence
-objected to was properly admitted.
The prisoner was found guilty of murder, and sentenced to
-death. I respited execution of the sentence pending the judgment
of the Full Court on the question reserved. A copy of my notes
■is appended to this case.
The question for the consideration of the Court is — Was the
-evidence objected to properly admitted ?
Power, for the prisoner : If the evidence objected to was
; admissible at all it was admissible only in one of three ways — as
.a dying declaration, as a deposition under the Justices Act, or as
a statement made in the prisoner's presence. As a statement
it was inadmissible, for the circumstances under which it was made
were such that a reply could not be expected from the prisoner,
because the formalities precluded him from answering. It was a
statement formally made in the presence of the prisoner. He
■ could not interject, no reply could be expected, and no inference
-could be drawn from his demeanour or silence. The prisoner was
•compelled to remain silent, for the taking, of the evidence was ia
the nature of a judicial proceeding. Thb Justices Act of 1886, ss.
'72, 77, 104, 113. If the evidence was admitted as a statement
the learned Judge should have at least told the jury that, owing to
the circumstances, there was no evidence of such conduct on the
prisoner's part as would make it admissible against him. Phipsou
on Evidence, 5th Ed., Ch. XXI., Roscoe on Criminal Evidence, p.
.48, E. V. Smith (1897, 18 Cox C.C. 470), R. v. Steve-ns (1904, S.R.
CEIMINAL REPOETS, 1860-1907. 543
<N.S.W.) 727), R. V. Welsh (1862, 3 F. & F. 275), R. v. Mitchell «• "• Wabton.
<1892, 17 Cox C.C. 503), R. v. Mann (1885, 49 J.P. 743), R. v.
Appleby (1821, 3 Stark 33), R. v. Swinnerton (1842, C & Mar.. 593),
Taylor on Evidence, 9th Ed., pp. 527, 528.
[Real J. : You must go so far as to contend that ir a statement
is made before Justices on oath in the presence of the prisoner,
-that statement cannot be put in at the trial as a statement.]
Yes. The formaUties required by ss. 72, 77, 104, 113 of The
■Justices Act of 1886, take it out of the category of a statement made
in a prisoner's presence. They distinguish the present case from
M. T. Smith (1897, 18 Cox C.C. 470). If this evidence was properly
admitted as a statement made in the prisoner's presence, it would
be equally admissible if the charge had been shooting with intent,
and Munday had not died. The circumstances prevented the
prisoner from indicating anything by his conduct.
[Real J. : He had a right to cross-examine.]
The opportunity for so doing is an excellent reason for admitting
"the evidence as a deposition, but an excellent reason for rejecting
at as a statement. For he is bound to maintain silence until the
"time for cross-examination arrives. In R. v. Mann (1885,
49 J.P. 743), the deposition was not put in because it was irregular ;
moreover, that case is dissented from in R. v. Mitchell (1892,
17 Cox C.C. 503), which is like the present case ; R. v. Fear shire
•(1779, 1 Leach 202), R. v. Dillon (1877, 14 Cox C.C. 4), R. v.
Wyl^ (1834, 6 C. & P. 380), Macdonnell v. Evans (1852. 11 C.B.
■930), R. .V. Eollis (^Sydney Morning Herald, 27th May, 1905),
-B. V. Wallace (1898, 19 N.S.W.L.R. 155), R. v. Radbourne (1787,
1 Leach 457).
[Real J. : The prisoner afterwards admitted that he shot the
<leceased.]
We are not concerned with that.
[Real J. : I think we are ; for when it was admitted that he was
■at the scene of the crime it was some evidence that the deceased's
account of the circumstances was not inaccurate. Could the
Judge say that that was not some evidence which the jury might
take into consideration— that is, by abstaining from asking any
■questions on the point, he, at least, admitted his presence at the
■scene of the tragedy. The evidence is pertinent at least to the
■qupsljion of the identification of the prisoner.]
If the first deposition Tvas properly taken under the Justices
544 QUEENSLAND JUSTICE OF THE PEACE.
E. V. Wabton. ^(3^^ jjQ inference can be drawn from the silence or non-denial
by the prisoner to any charge made by the first or any witness,
for he is entitled to make a statement only after the examination
of all the witnesses (s. 104). If it was not properly taken,
it could not be used for any purpose, otherwise s. Ill of the
Justices Act would be inoperative. As far as was shown it was-
probably in form, but if it was informal as being taken before one
Justice only (ss. 77 and 104), and because no formal charge was
made, the second deposition was the only evidence admissible,
but was not put in evidence. O'Donnell v. Chambers (1905-
V.L.R. 43), Reg. v. Hughes (1879, 4 Q.B.D. 614).
The fact that the prisoner cross-examined the deceased may
make the deposition admissible as a deposition, but it was not-
put in as such. As a deposition it would have been the best
evidence, and should have been produced. The statutory
deposition of a witness is not only the best, but the only proof
of what he stated. Leach v. Simpson (1839, 5 M. & W. 309),
quoted in B. v. Coll (1889, 24 L.R. (Ir.) 522), R. v. Bond (1850,
4 Cox C.C. 231), B. V. Walter (1836, 7 C. & P. 267), B. v. Gay
(1835, 7 C. & P. 230), RusseU on Crimes, Vol. III., p. 362.
Secondary evidence could not be given, for it was not shown that
the depositions were inadmissible or could not be produced, and
the statute requires evidence so taken to be reduced into writing,
and when reduced into writing the earlier communication is
superseded, and no parol evidence can be given. If verbal evidence
of the deceased's statement were admissible, aU the evidence
taken in the PoUce Court proceedings would be admissible in the
same way. But it is not, for it is taken in a formal way, and the
prisoner is restrained from interfering, interjecting, or commenting.
In none of the cases cited is it suggested that if the oral evidence
corresponds with the depositions the former can be given, or
that a witness can refresh his memory, in giving oral testimony
by looking at the depositions. As to the effect of receiving
inadmissible evidence, B. v. Gibson (1887, 18 Q.B.D. 537), Makin
V. Attorney-General for New South Wales ([1894] A.C. 57, B. v,
Hogan (1889, 3 Q.L.J. 143), Irving v. Gagliardi (1895, 6 Q.L.J. 155),
Crudgington v. Cooney ([1902] St. R. Qd. 176), B. v. Saunders
([1899] 1 Q.B. 490). Therefore, the evidence is inadmissible as a
statement. It was admissible, but was not tendered as a depo-
sition, and was not admitted as a dying declaration. It should
not have been allowed to go to the jury, and the verdict should
be set aside.
CEIMINAL EEPOETS, 1860-1907. 645
Feez {Dickson, with him), for the Crown : The prosecution are ^- "-Wabton.
not bound to put in all evidence. The document is not a deposition
under The Justices Act of 1886, for the prisoner was not formally
charged (s. Ill), and it is admissible as an admission. R. v.
ErdUim ([1896] 2 Q.B. 260), R. v. Reed (1829, Moo. & M. 403),
R. V. Harris (1832, 1 Moody C.C. 338), E,ussell on Crimes, 6th Ed.,
Vol. III., p. 544, R. V. Mann (1885, 49 J.P. 743), R. v. Louie
(7 Canadian C.C. 355). The whole question is one for the Judge.
It is for him to say whether the statement was made under
circumstances which make it likely to be of value and worthy of
consideration by the jury, and to decide whether it ought to go
to the jury, although, of course, the weight to be attached to it
is entirely for the jury. R. v. Smith (1897, 18 Cox C.C. 470),
Tod V. Earl of Winchelsea (1828, 3 C. & P. 387).
Real J. : At the trial of the prisoner on a charge of wilful
murder, objection was taken to the admission of certain
evidence by counsel for the prisoner. To support the con-
tention urged on the prisoner's behalf, the law would have to
be carried to the extent that whenever a statement is made on
oath before a Magistrate in the presence of the prisoner, that
statement cannot be used for the purposes of the prosecution
as a statement made in the presence of the prisoner, no matter
what the circumstances might be, or what evidence might be
given showing that the prisoner's conduct was such as to give
support to the statements made in his presence. If that is
the law the fact that the evidence is taken or a statement given
in the form of evidence, and under the behef that it is in the
course of a judicial or a magisterial proceeding, would be sufficient
to render the statement inadmissible on the ground that under
such circumstances no inference could be drawn against the
prisoner from the manner in which he conducted himself or from
the absence of any denial or explanation on his part or from the
questions which he asked at the time.
But if that is not necessarily the case it becomes the duty of the
Court to inquire, first, who is to decide whether or not the evidence
tendered is such as would make the statement admissible against
the prisoner, and whether or not there is evidence given by
which that decision can be supported. In my opinion the case
of R. v. Smith (1897, 18 Cox C.C. 470), decided by Hawkins J.,
contains a correct view of the law on the question. In that case
it was held that it is for the Judge, when a statement of this
KK
Beal J.
546 QUEENSLAND JUSTICE OF THE PEACE.
'•■ wabton. character is offered, to decide whether it is admissible or not.
Eeal J. It seems to me that there has been an English rule of law
admitting statements against persons when they were made in
their presence, and so it was urged by counsel for the prosecution
in the case I have cited. But Hawkins J. says, " The statement,
if made in his absence, would clearly not be evidence of the facts
contained in it. It makes no difference that it was made in his
presence unless evidence could be adduced which would justify
the jury in finding that the prisoner, having heard the statement
and having the opportunity of explaining or denying it, and the
occasion being one upon which he might reasonably be expected
to make some observation, explanation, or denial by his silence,
his conduct, or demeanour, or by the character of any observations
or explanations he thought fit to make, substantially admitted the
truth of the whole or some portion of it." The statement itself
is not evidence of the facts stated, but of what was said in the
person's presence, and, as Hawkins J. pointed out, it would be
unfair and unjust that such a statement should be put in if there
was no evidence arising from the conduct of the prisoner on which
the jury could draw an inference by reason of the silence, actions,
or demeanour of the person concerning whom it is made, that the
charge was partly, or wholly, true. It is for the Judge to decide
whether or not there is any evidence or circumstances surrounding
the case which showed that it should be left to the jury, and from
which, if left to the jury, they may draw an inference that the
accused person by action, conduct, or words made an admission.
Whenever a statement is tendered in evidence as having been
made in the presence of an accused person, the Judge should
see whether the surrounding circumstances are such that an
inference could be drawn from the inaction or the silence or
otherwise of the person of whom the statement is made.
The facts in the present case show that the deceased had been
attacked at night, and had been taken to the Hospital. He had
given certain information containing, apparently, the description
of the person who attacked him. The prisoner, who was afterwards
arrested in consequence of that description, was taken to the
hospital, and brought before the injured man, who identified him
as the man by whom he had been shot. After that, the deceased
being very ill, an officer of the Hospital, who happens also to be
a Justice of the Peace, appeared on the scene. It was considered
advisable that the depositions of the deceased should be taken,
and he was sworn, and gave evidence, which was taken down by
CRIMINAL REPORTS, 1860-1907. 547
Inspector White. The prisoner asked a number of questions, ^^- "• Wabton.
which were answered by the deceased. Very shortly afterwards Beal J.
the prisoner was charged with shooting the deceased with intent
to kill. The deceased was again sworn, and gave evidence, in
substance, the same as his earlier statement. In the first statement
he mentioned that the prisoner had pointed a firearm at him,
and had called on him to " Pork out, and be quick about it." The
omission of these words was practically the difference between the
two statements made. Undoubtedly the Justice thought he was
performing his duty as a justice with a prisoner before him when
he took the depositions for the purpose of preserving the evidence
so that it might form a part of the evidence on which the prisoner
would be subsequently dealt with by way of committal or dis-
charge. At the close of the evidence he asked the prisoner if he
desired to ask any questions, and prisoner at first said he did not
want to worry Munday, and, moreover, probably Munday would
have some prejudice against him — at that moment. The Justice
told him he miight not have another opportunity, everybody
apparently thinking that it was exceedingly probable that Munday
would die, and then the prisoner asked the following questions : —
" At what time did the occurrence take place ? " " At about a
quarter to eight." " To whom did you report the shooting ? "
Munday replied, " When assistance came to me I said I was shot,
and also told the sergeant of police at Toowong." " Did the
sergeant of poUce question you ? " Munday said, " Yes, he
asked me the description of the man, and I gave it to him . . .
and asked me if I could identify the man in the event of his
being brought to me, to which I answered ' Yes.' "
Under these circumstances was it in the province of the Judge to
decide whether or not that statement of the deceased's had any
bearing on the case — whether or not, the prisoner having asked the
questions, the circumstances supplied any evidence showing that it
was worthy of the consideration of the jury, and that any inference
could fairly and properly be drawn from the manner in which the
prisoner dealt with the deceased, and the questions he asked ? As it
happens, the questions asked have no bearing on and no apphcation
to the circumstances of the assault. No question was asked with
respect to the assault itself, and it is quite possible that the prisoner
at that time might have contemplated raising the defence that he
was not sufficiently identified. It seems to me that unless the mere
fact that the evidence was taken on oath, and beUeved by the
person who gave it, and by the prisoner who was present, to be on
548
QUEENSLAND JUSTICE OF THE PEACE.
R. V. Warton.
Beal J.
Power J.
Cooper C J.
a proceeding before a Justice on the hearing of an indictable
offence, precluded the admission in evidence of anything that took
place, there was evidence in this case for the Judge to consider,
and that being so, it was for him to determine whether he would
or would not let it go to the jury. It is not for me to say under
the circumstances whether I, individually, would have allowed
it to go to the jury, or whether anybody else would or would not
have done so. The question is whether the Judge should have
refused to admit the evidence, and I can see no good ground on
which the Judge could be precluded from admitting the evidence
unless it were held that when once it is shown that the
evidence or the statement sought to be used against the prisoner
as having been made in his presence, is a statement made before
a Justice under the belief, by the prisoner, that he was being
tried, it cannot be admitted. I do not think that is sufficient
in itself to make the evidence inadmissible. Every statement
made by a person in a prisoner's presence, if by his conduct or
silence or otherwise he has acquiesced in its accuracy, may be,
to some extent, evidence against him, and I am not prepared to
say that I differ from the learned Judge in the opinion he arrived
at with regard to this evidence. At any rate he came to the
conclusion that the evidence was such as he should leave to the
jury, and in admitting it he was clearly acting within his powers.
I therefore think that the conviction should be affirmed.
Power J. concurred.
Cooper C.J. : I was the Judge before whom the prisoner was
tried. I agree with the judgment delivered by my learned brother,
and I only wish to add that I entertained no doubt at the trial
that this evidence was admissible, and after hearing the argument
before us, I stiU have no doubt that it was so.
Conviction affirmed.
Solicitor for the prisoner : J. B. Price.
SoHcitor for the Crown : The Crown Solicitor.
CRIMINAL EEPORTS, 1860-1907.
[Circuit Court, Mackay.]
R. V. MURPHY AND OTHERS.
[1905 Q.W.N. 52.]
Criminal law — Jury — Challenge.
Crimtnal Trial.
At the trial of four persons charged jointly on an indictment for
assault and robbery, three were defended by one solicitor, and the
fourth by another solicitor. The jury panel was called, both
solicitors exercising the right of preliminary challenge, but did
not state on whose behalf the challenges were made. The panel
being exhausted, was again called, and the solicitors, again
without stating on whose behalf, peremptorily challenged twelve
jurors. The Crown Prosecutor then objected to any further
peremptory challenges.
Power J. held that, although the solicitors had not specified
in making their challenges for which of the accused persons the
challenge was made, yet, as they appeared for the different
Bersons, the challenges were separate.
Counsel : Jameson. Solicitors : A. G. Stuart ; S. B. Wright.
549
1905.
28tli March.
Pmoer J.
THE KING V. PIERSON, Ex parte SMALL.
[1906 S.R.Q. 5 ; Q.W.N. 2.— Note.— But see MeKelvey v. Meagher (4 C.L.R. 265).]
Fugitive offender — Warrant — Sufficiency of endorsement — Habeas
corpus — Effect of establishment of The Commonwealth of
Australia upon the law with respect to fugitive offenders — The
Fugitive Offenders Act, 1881 (44 and 45 Vic, c. 69), ss. 3, 39.
Since the establishment of the Commonwealth of Australia, a warrant for the
apprehension of a fugitive offender cannot be properly endorsed under s. 3 of
The. Fugitive Offenders Ad, 1881, by the Governor of any of the States forming
part of the Commonwealth.
Order Nisi for a Writ of Habeas Corpus.
B. A. Small was arrested at Brisbane under a provisional
warrant issued under s. 4 of The Fugitive Offenders Act, 1881,
and was brought up before a Police Magistrate on a complaint
made by a police constable stating that from information he had
1905.
litli September.
Real J.
5S0 QUEENSLAND JUSTICE Ob THE PEACE.
The King v. received, he had just cause to. suspect and did suspect and believe
Ex parte Small, that in that part of His Majesty's Dominions called the Transvaal,
South Africa, a warrant had been issued for the apprehension
of the accused person for having stolen £2000, the property of
certain named persons of Johannesburg, and that the accused
was suspected of being in this State of Queensland a fugitive
from the said part of His Majesty's Dominions called the Transvaal,
South Africa. After several adjournments, the accused was
again arrested by a Sergeant of Police of the Transvaal on a
warrant issued in the Transvaal, bearing the seal of the
Attorney-General, and signed by a Justice of the Peace of that
place. This warrant was endorsed as follows : — " I, Sir Hugh
Nelson . . . Lieutenant-Governor of the State of Queensland,
hereby authorise the execution of the within warrant in the
State of Queensland by Sydney WilUams or any constable."
After hearing the case the Police Magistrate committed the accused
to prison to await his return, and at the time informed him that
he would not be surrendered until after the expiration of fifteen
days, and that he had the right to apply for a writ of habeas
corpus.
An order nisi for a writ of habeas corpus was obtained on three
grounds relating to the admissibility of certain documentary
evidence by the PoUce Magistrate, and a further ground was
raised on the motion for the order absolute before Real J. — viz.,
that the warrant had not been properly endorsed, in that it had
not been endorsed by the Governor of the British Possession
within which the fugitive was apprehended within the meaning
of s. 3 of The Fugitive Offenders Act, 1881*.
Hobbs moved the order absolute. This warrant purports
to be endorsed under s. 3, subsec. 3, of The Fugitive Offenders
Act, 1881.* The whole of Australia is now one British Possession,
and in order that the apprehension of a fugitive who is in
* 44 and 45 Vic, c. 69, s. 3 : Where a warrant has been issued in one part of
Her Majesty's dominions for the apprehension of a fugitive from that part, any
of the following authorities in another part of Her Majesty's dominions in or on
the way to which the fugitive is or is suspected to be ; (that is to say) —
(1) A judge of a superior court in such part ; and
(2) In the United Kingdom a Secretary of State and one of the Magistrates
of a Metropolitan Police Court in Bow Street ; and
(3) In a British possession the Governor of that possession,
if satisfied that the warrant was issued by some person having lawful authority
to issue the same, may endorse such warrant in manner provided by this Act,
and the warrant so endorsed shall be a sufficient authority to apprehend the
fugitive in the part of Her Majesty's dominions in which it is endorsed and bring
him before a Magistrate.
CEIMINAL EEPORTS, 1860-1907. 551
Australia on a warrant issued in another part of the British The Kino v.
Dominions may be valid, that warrant must, if endorsed under sub- ex S^/smali.
sec. 3, be endorsed by the Governor of Australia— that is to say, the
Governor-General. Prior to Federation the Governor of any of
the Australian colonies could endorse such warrant, but now
all those States are merged into one British Possession, for the
whole of Australia having one central legislature, is to be regarded
as one British Possession (s. 39) . The Governor of Queensland had,
therefore, no power to endorse the warrant, and the accused
was unlawfully in custody. He referred to The Fugitive Offenders
Act, 1881, ss. 3 and 39*, and to In re Willis (Unreported— See
The Commonwealth Law Review, Vol. 3, Part I., p. 14).
Rart showed cause. The Commonwealth has not exclusive
power in deaUng with external affairs. Both the Commonwealth
and the States of which it is composed have jurisdiction over
fugitive offenders. For some purposes the Commonwealth is
the dominant legislature, but only in those matters surrendered
to it by the States ; and for the purpose of enforcing the Fugitive
Offenders Act each State is still an independent sovereignty,
and the Governor of each State may still exercise the power
which he undoubtedly had before Federation of endorsing warrants
under s. 3. Each State is still a central legislature within the
meaning of s. 39. If the word Governor in s. 3 means only the
Governor-General of the Commonwealth, it would appear that
the phrase " judge of a superior Court in such part " has reference
only to the Judges of the High Court. That interpretation
would greatly restrict the section. He referred to In re Gerhard,
Ex parte Martin (1901, 27 V.L.E.. 244).
Real J. : On the questions raised with respect to the ad- Real J.
missibiUty of evidence, I incUne to the opinion that the documents
were properly admitted ; but on the question of the sufficiency of
the endorsement of the warrant I have come to the conclusion
that the Governor referred to in s. 3, subsec. 3, of The Fugitive
Offenders Act, 18.81, means the person administering the
* Section 39 provides inter alia : The expression " British possession," means
any part of Her Majesty's dominions, exclusive of the United Kingdom, the
Channel Islands and Me of Man ; all territories and places within Her Majesty's
dominions which are under one legislature shall be deemed to be one British
possession and one part of Her Majesty's dominions. The expression, " legis-
latiire," where there are local legislatures as well as a central legislature, means
the central legislature only ; The expression, " Governor," means any person
or persons administering the government of a British possession, and includes the
Governor and Lieutenant-Governor of any part of India."
Real J.
552 QUEENSLAND JUSTICE OF THE PEACE.
The King r. Government of the Commonwealth of Australia, whether he is
"Ptfrson
Ex parte Smai,l. called the Governor-General or whatever he is called. I have
experienced considerable doubt and difficulty in coming to
this opinion, owing to the conflicting views which have been
taken by some of the learned Judges in other States ; but it seems
to me, looking at the whole of the statute, that the powers given
thereby are entrusted 'to a single authority with reference to
the whole of a British possession in the sense of the whole of
one part of the British dominions. The Act appears to
contemplate that where there is a central legislature for any
British possession, the whole of the territory under the control
of that central legislature is to be deemed one British possession.
" The expression legislature, where there are local legislatures as
well as a central legislature, means the central legislature only."
Section 39. That being so, I am reluctantly compelled to come
to the conclusion that the various Acts which were supposed
to be performed by the Governor of this colony before Federation
under the Fugitive Offenders Act, 1881, can only, since the
establishment of the Commonwealth of Austraha, be performed
by the Governor-General of the Commonwealth as distinguished
from the Governor of this State. This prisoner was held by a
warrant endorsed by the Governor of this State, and not by the
Governor-General of the Commonwealth, and is no longer in legal
custody, the time having elapsed during which he could be
held on remand. Had the application been made before seven
days of the time of the commitment I might have treated the
prisoner as held under remand ; and as the prisoner had been
arrested under a provisional warrant there would then have
been nothing to prevent the Magistrate adjourning the case from
time to time until the proper endorsement had been obtained
from the Governor-General of the Commonwealth, assuming
that the Commonwealth legislature was the one which was
assigned as " the legislature." But at present the prisoner has
been already in custody since his last remand for a period exceeding
seven days, which is the longest limit for which a remand could
be allqwed. I am therefore of opinion that this rule should be
made absolute, and, under 0. LXXXII., r. 8, I will order him
to be discharged without issuing a writ of habeas cwpus.
Order for discharge of the prisoner from custody.
Solicitors for the prisoner : Foxton & Hohbs.
Solicitor for the Crown : The Crown Solicitor.
CRIMINAL REPORTS, 1860-1907.
558
[Full Cotjet.]
REX V. RYAN.
[1906 S.R.Q. 15.— Note.— Ses R. v. Kenniff, (1903 S.R.Q. 17), ante p. 434..]
Criminal law — Wilful murder — Evidence of the corpus delicti —
Circumstantial evidence.
The corpiis delicti in a case of murder, and the connection of the accused
person with the commission of the crime, may be proved by circumstantial
evidence.
In such cases, the Judge should draw the jury's attention to the class of evidence,
aad caution them to be careful in drawing inferences from the facts established.
Crown Case RiESebved. •
The prisoner was tried for wilful murder at Toowoomba Circuit
Court before Real J. and a jury, and was found guilty, and
sentenced to death, but execution was respited pending the
determination of certain points reserved for the opinion of the
Full Court.
The following was the case stated by the learned Judge : —
The prisoner was indicted for the wilful murder of Walter
George Benton at Pinelands on the 4th of February, 1905.
There was evidence to the following effect : —
In 1903 William Kelly obtained a lease of Pinelands Selection
from Walter George Benton. Kelly with his family, and the
prisoner with his family, went to live on the selection. Benton
gave Kelly a right to purchase the selection, but this right Kelly
gave up, and a neighbouring farmer named Alfred King entered
into an agreement with Benton for the purchase of the selection.
KeUy and the prisoner, who are married to sisters, continued,
"with their respective families, to reside on the selection, but in
separate houses, and the prisoner made certain improvements
on the selection, and fenced in some fifteen to twenty acres with
a paling fence. In 1904 the prisoner informed F. E. Campbell
that he had a right to subpurchase as to twenty acres, that he
thought King would not go on with the purchase, and he asked
Mr. Campbell to take up the purchase, and allow him (Ryan)
the right of sub-purchase as to the twenty acres. Campbell
said he would inspect the selection, but did not do so, and nothing
further came of that suggestion. About the end of the year
1904 the prisoner asked King to transfer his right of purchase.
About the end of January, 1905, prisoner again requested King
to transfer to him the right of purchase, and King, having between
1905.
8nd, 3id, 4th,
November.
Cooper G.J.
Heal J.
Chubb J.
Power J.
654 QUEENSLAND JUSTICE OF THE PEACE.
Rex v. itYAN. ti^g requests obtained the consent of Benton, transferred his right
of purchase to the prisoner. The prisoner wrote out and retained
the transfer. The document was not produced. On 15th
January, F. S. Greenslade visited the prisoner at his place.
He found him working in a hollow, not far from the paling fence,,
surrounding the fifteen or twenty acres before mentioned. The
place was cleared of brushwood for an area of about ten or fifteen
yards square, and prisoner said he was clearing a space to make
a dam preparatory to going to the Central District to shear to-
make money to pay Mr. CampbeU back. He said Mr. Campbell
was going to lend him money to purchase the selection. About
the end of January, 1905, the prisoner told T. J. WUUams that he
intended to purchase Kenton's farm with the aid of F. E. Campbell,
who had promised to assist him financially to the extent of £100
or over.
CampbeU had told the prisoner that he could get him work
as a shearer, and might be able to get him employment at two or
three sheds besides the shed with which he was himself connected,
but he did not at any time promise to advance him any money
towards the purchase. The prisoner was working for Campbell
and from time to time in company with W. S: CampbeU, a brother
of F. E. Campbell, and had asked W. S. Campbell to assist him
to purchase the selection if the prisoner did not obtain the money
from a man he was expecting to obtain money from, and on
more than one occasion asked W. S. Campbell to assist him,
and Campbell said he would speak to his brother, but he did
not at any time promise to advance any money to the prisoner.
On 1st February, 1905, W. S: Campbell paid the prisoner
a cheque for £7 16s. On the next day the prisoner went to
Toowoomba, where he opened an account with the Australian
Joint Stock Bank, depositing therein to his credit the sum of
£5, part of the cheque for £7 16s., and he obtained from the
bank a cheque book containing twenty-five forms, Nos. 55251 to
55275. At 2.30 p.m. on the same day, J. D. Wyeth, at the
request of the prisoner and for him, filled in one of these cheques
for the sum of £125 in favour of Walter Benton, and prisoner
took away with him the cheque so filled in.
A plan of Pinelands selection, showing the situation of the
residences of W. Kelly and of the prisoner, and certain other
places mentioned, was put in evidence, as was also a plan showing
the relative positions of Pinelands Selection with the neighbouring
and adjoining selections.
CEIMINAL REPORTS, 1860-1907. 555
On the morning of 4th February, 1905, Benton took possession ^='= "• ^^*n.
of a brown mare with foal at foot from Jacob Hirning near Crow's
Nest, with whom he had some time previously left the mare for
service of Hirning's stalhon. During that day Benton rode
that mare from place to place, and at about six o'clock in the
evening he left the house of T. A. Neilson at Crow's Nest, riding
that brown mare, the foal following. About half an hour later
Benton was seen passing Kelly's house, going in the direction of
prisoner's. At about the same hour W. J. Fitch, who lives near
and from whose verandah the houses of both Kelly and the
prisoner can be seen, and knew both Benton and prisoner, was
standing on his verandah, and saw a man he took to be Benton
in the yard in front of the prisoner's door, get off his horse, and
apparently enter into conversation with a man he took to be
prisoner. Fitch then went inside his house, and saw no more of
them. Later on in the evening the prisoner came to Kelly's
house, and asked if Benton had left any papers there. He was
answered in the negative, and Kelly asked him was he going to
the school meeting that night. Prisoner replied, " Yes," and
Kelly said that he and Fitch would wait for him, and they would
all go together at about half-past seven o'clock. Fitch came to
Kelly's on his way to the school meeting, and the prisoner, not
arriving, Kelly went and called him. Not getting any answer
Kelly walked towards the prisoner's house, calling prisoner by
the name " Jim." The prisoner opened his door, and came out.
Through the open door Kelly saw into the prisoner's house, and
saw the prisoner's wife and children, but did not see Benton.
On coming out the prisoner told Kelly that he was going to the
school meeting, but intended to walk. Fitch and Kelly were
riding ; there was on the selection a horse for prisoner if he
desired to ride. Kelly and Fitch went to Pinelands School,
the place of meeting, where they and others waited for some
time expecting the prisoner. He did not, however, appear,
and Kelly, Fitch, and others, after the conclusion of the meeting,
rode back, and arrived home at about 11 p.m., without having seen
anything of prisoner. On Sunday morning, 5th February, 1905,
Kelly saw the prisoner, and complained about his conduct in not
coming to the meeting after having promised, and the prisoner in
explanation said he went with Benton to Fred. Konz (a farmer
Uving on a neighbouring selection) to get a subscription list from
Benton, and it was then too late to go to the school meeting. On
6th February, being asked by Charles Brewer, a farmer Hving in the
656 QUEENSLAND JUSTICE OF THE PEACE.
Bex v. Eyan. district, why he had not attended the meeting, prisoner said, " I
had Benton at my place on Saturday night, and he had been
collecting money for Billy Kelly since the time he got his house
burnt down, and I wanted him to show me the list of his collections.
He said he had not it with him, it was at Fred. Konz's, so I went to
Fred. Konz's with him, and it threw me too late. He was to have
fetched the list up yesterday, but he did not turn up with it yet.
If he don't turn up this week I'll put it in the hands of the poHce,
and I thought it would be no good me coming when it would
be all over." On 5th February, 1905, the prisoner, amongst
other things, told Kelly that he intended to buy Pinelands
selection, but unless Kelly consented to continue to reside on it
he would not buy the selection, but would leave it, and buy
another place. Kelly said he was willing to continue on the
selection if the prisoner purchased it. That night Kelly and his
wife went to the prisoner's place, and the question of the purchase
of the selection was again mentioned, and the prisoner told Kelly
that he had the money in the bank and a cheque book to pay
for the selection, and that the purchase would be fixed up in a
few days.
Benton had resided in the Crow's Nest district between eighteen
and twenty years. He with his sister, Mrs. Astbury, and her
husband came from England ; they all settled in the Crow's Nest
district. About eight years ago Mr. Astbury died ; Mrs. Astbury
was Benton's only sister. They were a fond brother and sister.
On Sunday, 29th January, 1905, he was at Astbury's for dinner,
and had arranged to come again on Sunday, 5th February. From
31st January to the evening of the 3rd February he had been
working for a man named Shannon near Crow's Nest. He
was working there with Griffin. On 4th February he was about
with Griffin, and they had partly arranged to obtain another
job together. They were to make final arrangements on Sunday,
5th February, and to commence work together on the following
Monday. When Benton left Neilson's at Crow's Nest, on the
evening of 4th February, he was expected back the same evening
to attend a concert at Crow's Nest. He had for some time
previous to 4th February made Neilson's a sort of home. There
he kept during the week days his Sunday clothes and his other
personal belongings not in actual use. He also stayed there
from time to time when in Crow's Nest and not working.
Benton has not been seen or heard of except from the prisoner
since he was seen on 4th of February at prisoner's house. As
CRIMINAL REPORTS, 1860-1907. 567
he did not return to Neilson's as expected, and as Mrs. Neilson ^"'^ "• ^^*^-
heard nothing of him, she became anxious, and on 11th February
she sent her son to enquire of Mrs. Astbury about Benton.
The friends of Benton then commenced to search for him.
Thomas Astbury came to Crow's Nest to make enquiries. The
prisoner had previously been seen by Kelly in possession of a
mare and foal which Benton had with him on the evening of
4th February. Kelly at that time, not knowing about Benton's
disappearance, asked the prisoner what the mare was doing
there. He answered that Benton was to leave her with him to
take to Stark's horse. The mare was not taken by prisoner to
Stark's, and, in fact, the mare was taken from Hirning's on the
morning of the fourth as having been served by Hirning's horse.
Astbury saw prisoner, and asked him if he had seen or heard of
Benton. He said, " Not since Saturday week. I have to meet
Benton here this evening and in Toowoomba on Tuesday to fix
up the transfer of the land." He also said he had bought the land,
but he did not then tell Astbury that he had Benton's mare,
foal, bridle, and saddle since the previous Sunday. The prisoner
had seen and spoken to Astbury at Crow's Nest on the afternoon of
Sunday, 5th February, and although Benton's name was
mentioned did not tell Astbury anything about the purchase of
the selection. On 13th February Astbury went to the selection,
and again, spoke to the prisoner. After that he came to Crow's
Nest, and made a report to Acting-Sergeant Steweirt. Stewart
interviewed prisoner, who made a statement to him.
On 14th February, 1905, the police visited Pinelands selection,
saw the prisoner, made a search of his place, and obtained a
statement from him which was taken down in writing, and signed
by the prisoner. His statements were to the effect that Benton
on the evening of 4th February, came to his house by appointment
to carry out the sale of Pinelands selection to him ; that he,
in the presence of his wife, paid Benton the purchase money —
£125 — in notes and gold as described and received a receipt
therefor, which the prisoner wrote out and Benton signed, and
on which Benton wrote the further words "to be stamped ; "
that at that interview he asked Benton for a subscription list
which Benton had, and that Benton told him that the list
was at Konz's ; that he, for the purpose of getting the hst,
went with Benton to Konz's ; they walked, Benton leading
the brown mare through the sUprails, where he left her tied,
and went with prisoner to Konz's ; arriving there, the prisoner
558 QUEENSLAND JUSTICE OP THE PEACE.
Bex v. Btan. waited at the gate ; Benton went to the house ; he was away
about twenty minutes, and on returning told the prisoner that
he could not find the list there, that it must have gone in his
dirty clothes to his sister's when he sent his clothes for washing ;
that he parted with Benton at Konz's ; that he (prisoner) then
went to Pinelands School, and that Benton went back for his
horse. He also said to Stewart that Benton went to Crow's
Nest.
Benton did not go to Konz's house on the night of 4th February.
Konz was at home, and neither heard nor saw him. Benton
had worked for Konz in January, but had not left any papers
there to the knowledge of Konz, and while he was working there
he did not stop there at night. Benton had not for years sent
any clothes for washing to his sister's, nor any dirty clothes
whatever. He kept his clothes at NeUson's at Crow's Nest, and
Mrs. Neilson had, for a long time previous to the fourth of
February, got all his washing done for him.
It is admitted by the Crown Prosecutor and counsel for the
prisoner that the receipt is signed by Benton, and that the words
" to be stamped " are in Benton's handwriting.
The prisoner stated that he obtained the money to pay Benton
on the 2nd February at Toowoomba at about one o'clock near the
Post Office from a man whose name he would not disclose, because
he had promised not to do so, although in answer to questions as
to what security the man was to have for his money, the prisoner
said he was to put the man's registered brand on his stock, and
upon the completion of the transfer of the selection he was to
give the man a mortgage over it. The prisoner said that this
man came from CharleviUe, that he had written to him at Broken
Hill, and received a letter in reply, saying he would be in
Toowoomba on a certain day. This letter was not produced.
The prisoner also said this man lived in New South Wales.where he
had the management of a place, and although prisoner was asked
several times to give the man's name, he always refused, sajdng,
amongst other things, that he did not see how it would do any
good. The police searched the prisoner's house, and the prisoner
produced to them a cheque book containing forms numbered
55,252 to 55,275. He admitted that he had procured the first
form of that book to be filled in for £125 in favour of Benton,
when he had but £5 to his credit in the bank, although if his
statement as to the receipt of the £125 is correct he had that
money in his possession an hour before the cheque was filled in.
CRIMINAL REPORTS, 1860-1907. 559
and during banking hours. The prisoner said he had destroyed ^^^ '"' ^'^'^^■
the cheque, but not the butt.
In searching Pinelands selection the attention of the poUce was
drawn to the remains of certain fires within the pahng fence erected
by the prisoner. The sites of these fires are marked on the plan,
and are referred to in the evidence as fires Nos. 1, 2, 3, and the pine
log near fire No. 2. The fires had been made ia a dense brush-
wood scrub, and no apparent beneficial purpose could have been
served by making them in that place so far as the police could dis-
cover. The site of fire No. 2 was not visible from fire No. 1, owing
to the dense brushwood. The prisoner, in answer to questions,
said that he had made all those fires, that he only made and had
to do with those fires, that in those fires he burned only wood and
brush and rubbish such as brushwood, except that in No. 1 fire he
burned a dog, and also in fire No. 3. Fire No. 1 had the appearance
of having been brushed up, and the charcoal and ashes removed.
The prisoner being asked who did this stated that he did, and had
used the ashes for the purpose of preparing cut potatoes for
planting ; that he had shovelled up the ashes, charcoal, and
potatoes together, and placed the whole in a bag, which he hung
up on a pigstye, but that the pigs ate the bottom out of the bag
and most of the potatoes, and that he had thrown the remainder
into the pigstye. The ashes and charcoal in the pigstye were
sifted by the pohce, and among them were found two wire nails
and four rivets. From the appearance of the sites of the fires
rain had fallen since the times of the fires, and since the sweeping
or shoveUing up of the ashes, potatoes, and charcoal. At the
scene of fire No. 1, Inspector Geraghty noticed some small pieces
of bone in the remains of the ashes, and picked them out, and
near by two small pieces of potato were found. What ashes
remained on the scene of fire No. 1 when the poHce discovered it,
after the removal of the pieces of bone, were sifted and washed,
but although small particles which looked like bone were obtained,
the particles were so small and so much burnt that they crumbled
to dust. At fire No. 2 a buckle, such as would be on dungaree
trousers, a tweezers, such as would be in the knife known as
a " western castrator," and part of the blade of a knife not Hke a
" western castrator " knife were picked out of the ashes. The
ashes and charcoal were sifted and examined, and in these were
found rivets, nails, eyelets, and tacks such as would be in boots ;
buttons and rivets such as would be in dungaree trousers, and
a brass rivet such as would be in a leather watch pouch. Part
560 QUEENSLAND JUSTICE OP THE PEACE.
Bex v. Byan. ^f g^ ij^rht -bgot heel was found under the pine log near fire No. 2.
This log was burned on the underneath side. A spur that had
the appeareance of having been exposed to fire was found in the
dense brushwood scrub between fires Nos. 1 and 2.
On Saturday, 4th February, when he left Neilson's, Benton
was wearing either a coat or vest. He had on a pair of dungaree
trousers, a shirt, a felt hat, a belt with a watch pouch and, it was
thought, watch, and a pair of hght laceti-up boots usually used
by him as Sunday boots. He usually wore one spur on the left
foot even when at work, and he so wore it between 31st January
and 3rd February. He usually carried a knife of the class known
as a " western castrator." The spur found in the brushwood
between fires Nos. 1 and 2 was a pair to a spur found amongst
Benton's effects.
All the articles found in fire No. 2 and in the pigstye other than
bones correspond with articles which would come from the
clothing worn by Benton or usually carried by Benton, except
those which may have formed part of a knife of a different kind
to that known to be usually carried by Benton, but there was
not found any article in the remains of these fires actually
identified as in fact forming part of any article which Benton
had on or with him on Saturday, 4th February, 1905.
Acting-Sergeant Daly, who took part in sifting the ashes and
charcoal from the pigstye and from No. 2 fire, noticed that the
ashes from both places were very greasy. He also noticed at
the pigstye large bones hke bullock bones, but Acting-Sergeant
Portley, who sifted and washed what remained of the ashes at
No. 1 fire, did not notice anything particular about them, nor did
he notice any greasiness.
Dungaree trousers are articles of very common wear in the
Crow's Nest district, but in making them some makers use two
rivets in each pocket and some only one rivet. A draper was
called as a witness. He gave evidence that the buckle and buttons
found corresponded with the buckle and buttons on a pair of
dungaree trousers shown to him which belonged to Benton, and
that the rivets found were similar to the rivets in Benton's
trousers shown to him, but that they were not the same class of
rivets as those in a pair of trousers belonging to the prisoner.
A bootmaker of Crow's Nest, who had made the light laced-up
boots which Benton was wearing when he left Neilson's on the
evening of 4th February also gave evidence, and said that the
charred boot heel found under the pine log near No. 2 fire corres-
CRIMINAL REPORTS, 1860-1907. 561
ponded with the heel of the boots he had made for Beaton in the ^^ "• •^^*''"
matter of nails and brass rivets. He further said there were in
Benton's boots twenty-four eyelet hooks, about 248 brass rivets
in the sole, thirteen wire rivets in each heel, and 104 tingles ; and
that the wire nails, the hooks and eyelets, and the rivets found at
the fires were similar to the ones he used in making Benton's boots,
and that the wire nails and rivets found in the pigstye were also
similar to those he had used.
The bones and other things from the several fires were submitted
to Dr. Thomson and Dr. Love in Brisbane, and to F. P. Sands,
Professor of Anatomy in the University of Sydney. This last
witness said that he thought that certain pieces of the bone
picked up at fire No. I were human bone. In his opinion one piece
was the head and portion of the shaft of the second metatarsal
bone of the right foot. The specimen came from an adult, and
the probabUities were that that adult had a small foot. There
was, however, a possibihty of the specimen being from the fourth
metatarsal bone of the left foot, although he thought it was from
the second of the right foot. Another of the bones he considered
to be the upper half of the first phalanx of the great toe, and
thought it came from the right foot, but that possibly it was portion
of the corresponding bone of the left foot. Of the other portions
of bone one or two pieces appeared to be human, but he could not
definitely say that they were. Of the portions which he said
were human he could not tell whether they came from a man's
foot or a woman's foot, or whether from a white man or an
aboriginal. He said that sometimes it would be possible to classify
them, but that the pieces were too small and imperfect to allow
of an opinion. Of exhibit 26, he said that probably some pieces
of it were human, but he did not identify them for certain. AU
the bones which the experts thought were human or which might
be human came from fire No. 1. Evidence was given to show
that the most carefid search had been made to discover anything
other than what was found, and searching enquiries had been
made for Benton, but with no result other than given in evidence,
and a letter received for him after the 4th February, 1904, was
put in evidence, which showed that he was in communication
with a Miss Wright in England. The Astburys communicated
with Benton's brothers in England, but no tidings of him could be
discovered. The police when searching prisoner's premises found
two bottles of strychnine. These bottles appeared to the police
as if they had not been opened. The prisoner said that he had
LL
662 QUEENSLAND JUSTICE OP THE PEACE.
Bex v. Btan. them in the West, and had forgotten about them. He got from
W. S. Campbell, strychnine poison sufficient for six dog baits ;
prisoner said he used some to poison dogs, and destroyed the
rest for fear of the children taking it.
Evidence was not called for the defence. The Crown Prosecutor,
in his summing up, did not make any reference to that, but Mr.
Watson, counsel for the prisoner, referred to the circumstance
that he had not called Mrs. Ryan, prisoner's wife, whom prisoner
had stated to be present at the payment by him of the £125 to
Benton on the dth February, saying that he had not called her
as she on that night had her children to attend to, and might
not have noticed.
The prisoner after his arrest, on one occasion, said, " In my
opinion Benton was done in on the flat down by the sUprails.
I think I could lay my hand on the man who did it. I could
impHcate others if I wished to do it, but it would not do me any
good, and they would not think any more of me for it." On
several occasions he said, " I could implicate others, but it would
do me no good."
After the jury had retired, Mr. Watson asked me to reserve for
the consideration of the Court the following questions : — Was
there evidence which should have been allowed to go to the jury,
there being no direct evidence of an act of the prisoner likely
to cause death, and — he submitted — ^there being no convincing
presumption of death raised, or of the fact of Benton's death.
The jury found the prisoner guilty, with a recommendation to
mercy on the ground that no one saw him do the deed.
I passed sentence of death, but respited execution, and at
the request of Mr. Watson, I reserved for the consideration of
the Court the question : — Was there evidence which should
have been allowed to go to the jury, there being no direct evidence
of an act of the prisoner likely to cause death ?
I also reserved the following questions : — Was there evidence
proper to be left to the jury of the death of Benton ? Was there
evidence proper to be left to the jury of the guilt of the prisoner ?
A copy of the notes taken at the trial by the learned Judge
and a copy of the prisoner's signed statement were annexed to
the case.
Watson for the prisoner.
Lilley and Kingsbury for the Crown.
Watson., for the prisoner, reviewed the evidence, and contended
CRIMINAL REPORTS, 1860-1907. §63
that no evidence had been given on which the jury could find ^^^^ "• ■^'^''•
that any person had been murdered, or that Benton had been
murdered. The finding of two small bones of a foot in the fire
was no evidence of the death of a human being, for even if a whole
foot had been found that would only be evidence of mutilation,
and not of death. In this case there is at the most only
circumstantial evidence of the commission of any crime, and
only circumstantial evidence of the identity of the dead person
{assuming that any person was murdered) with Benton. He
submitted that the law requires that some direct evidence of
death must be given, and until such evidence is given circumstantial
evidence is insufiicient to establish a case of murder. In Hale's
Pleas of the Crown, Vol. II., p. 290, Sir Matthew Hale says,
" I would never convict any person of murder or manslaughter
unless the fact were proved to be done, or at least the body found
dead."
[Chubb J. : That is only a statement of what the Lord Chief
Justice considered to be a proper warning to the jury ; that they
ought to be directed that they should be satisfied beyond any
reasonable doubt that the body was found or accounted for.]
It seems to have been adopted as a statement of the law that
some direct evidence of the corpus delicti, the existence of the
criminal fact, must be established by direct evidence. " It has
always been the rule since the time of Lord Hale that the corpus
delicti should be proved by direct, or, at least, by certain and
unequivocal evidence." The People v. Palmer (1888, 4 Amer.
S.R. 423, at p. 425). When once direct proof of the death of a
human being is given, circumstantial evidence is then admissible
to prove the identity of the remains and the identity of the person
who caused the death, but circumstantial evidence alone is not
admissible to prove the corpus delicti in a case of murder ; there
must be some direct evidence that some one is dead. The King
V. Ohas. King (1905, Canadian C.C. 426). In Best on Evidence,
8th Ed., p. 390, it is stated that there must be clear and
unequivocal proof of the corpus delicti in criminal matters, and
Starkie on Evidence, 4th Ed., 862, says, " It is an established
rule upon a charge of homicide that the accused shall not be
convicted unless the death be first distinctly proved, either by
direct evidence of the fact, or by inspection of the body," which
inspection, it is submitted, need not result by itself in identifying
the body as that of the person killed. He referred to Hodge's
564 QUEENSLAND JUSTICE OF THE PEACE.
Bex v. Ryan Case (1838, 2 Lewin C.C. 227), E. v. Gardner (1859, 1 F. & F. 669),
E. V. Franz (1861, 2 F. & F. 580), E. v. Cheverton (1861, 2 P. & F,
833). The evidence to establish the fact of death ought to be
strong and cogent, it ought to be so strong and intense as to pro-
duce the fuU assurance of moral certainty. Greenleaf on Evidence,
Vol. III., p. 44. The evidence in this case does not establish with
the degree of moral certainty that the body burnt was that of
Benton, indeed, a doubt arises whether the whole body of any
human being was burnt. The jury by their finding clearly show
that they were in great doubt.
[Cooper C.J. : Their finding amounts to a statement that
the prisoner, in their opinion, was guilty of the murder of Benton
under the circumstances alleged by the Crown, but that they
thought that no person ought to be hanged where the crime of
murder has been proved against him by circumstantial evidence
alone.]
Lilley, for the Crown : There is overwhelming evidence of the
murder of Benton ; the jury believed the evidence given, and their
findings are reasonable. This Court does not sit in its criminal
jurisdiction as a Court of Review to review the decisions of juries
upon questions of fact. E. v. Patrick Kenniff (1905, St. R. Qd.
17, at p. 41). He related the facts in chronological order, and
contended that no reasonable theory or explanation of the
circumstances proved could be advanced which was consistent
with the prisoner's innocence ; but that, on the other hand, the
evidence was inconsistent with the theory of suicide or accident.
The corpus delicti and the connection of the prisoner with the
crime may be proved by circumstantial evidence. The doubt
which has arisen is attributable to a misconstruction of the
words of Lord Hale which have been quoted, but those words
are only intended as a caution. E. v. Burton (1854, Dears. C.C.
282). Circumstantial evidence is and always has been admissible,
under English law, to prove any charge however penal, or any
case civil or criminal. E. v. Armstrong (1875, 13 Cox C.C. 184),
E. V. Murphy (1867, 4 W.W. & a'B. L. 63), Makin v. The Attorney-
General for New South Wales ([1894] A.C. 57), E. v. Hindmarsh
(1792, 2 Leach 569), Hodge's Case (1838, 2 Lewin C.C. 227),
Taylor on Evidence, 9th Ed., p. 121 ; Archbold on Criminal
Evidence, 22nd Ed., p. 748 ; Russell on Crimes, 6th Ed., Vol. III.,
p. 158 ; Wills on Circumstantial Evidence, pp. 200-206, 211, 213,
214. The learned Judge, in directing the jury, practically gave
CRIMINAL REPORTS, 1860-1907. 565
the same direction as Alderson B. gave in Hodge's Case, (1838 2 ^^^ "• ^■'^*'-
Lewin C.C. 227), although at the time he did not have a copy
of that ease before him. In that case Alderson B. " told the jury
that the case was made up of circumstances entirely, and that
before they found the prisoner guilty they must be satisfied not
only that those circumstances were consistent with his having
committed the act ; but they must also be satisfied that the facts
were such as to be inconsistent with any other rational conclusion
than that the prisoner was the guilty person."
Watson, in reply, referred to The People v. Palmer (1888, 4
Amer. S.R. 423, at p. 426), and to Greenleaf on Evidence, Vol. III.,
p. 155. On the question of the cogency of the evidence, he
referred to R. v. Murphy (1867, 4 W.W. & a'B. L. 63).
CoOPEE C.J. : In this case the prisoner was charged with the Cooper C.J.
■wiHul murder of Walter George Benton at Pinelands on 4th
February, 1905. The trial took place in September, about seven
mopths after the murder was committed, and lasted for several
days, during which a great volume of evidence was given. The
prisoner was found guilty. The learned Judge reserved three
questions of law for the consideration of the Court, and, shortly,
these three questions involve the consideration of whether on
the evidence which was before the jury they were justified in
convicting the prisoner. Nearly all, if not all, the material
part of the evidence has been set out in the case stated by the
learned Judge. From that it appears that Benton was a working
man, who owned a small selection at Crow's Nest. This he leased
to a man named Kelly, who was the brother-in-law of the prisoner,
and the prisoner had the option of purchasing the selection
from Benton. The prisoner wished to have this selection ; there
was no doubt that he wanted it for his own. Benton had lived
in the district where he died, or where he was supposed to have
been murdered, for eighteen or twenty years. He was well
known to the people who lived there. He worked for wages at
farm labour, or fencing, or work of that sort, and when he was
working he lived with his employers, but always in the neighbour-
hood of Crow's Nest. When not working in that way he lived with
a person named Neilson, and it was there that he kept his clothes
and his personal belongings. He was a man whose movements
were certainly much circumscribed by circumstances. He had a
sister hving in the neighbourhood, and he was well known to all
the neighbouring residents. On 4th February, 1905, he went by
566 QUEENSLAND JUSTICE OP THE PEACE.
Bex v. EYA^^ appointment to the prisoner's house — the prisoner said to arrange
Cooper C.J. about selling the selection to him — and was seen at the prisoner's
house about six or half-past six o'clock on that evening. He
was never afterwards seen alive by any person except the prisoner.
The prisoner, therefore, was the last person known to be in his
company. During that night Benton disappeared, and has never
been heard of since, and at the time of the trial — seven months
after his disappearance — although diligent search had been
made for him and inquiries made for him all over the world, or in
nearly every place where he was likely to be heard of, no trace of
him had been discovered. Now, on the evening of 4th February,
he was expected at Mrs. Neilson's house. He had made an
appointment with a mate of his named Griffin, with whom up to
the preceding day he had been working, and with whom he had
made an arrangement to undertake other work on the following
Monday. His appointment to meet Griffin was fixed for Sunday,
5th February, to arrange with him about the work, which they
intended to commence together on the following day. He had
also made an appointment with his sister, Mrs. Astbury, to be at
her house on Sunday, 5th February. He never kept those
appointments. His disappearance from mortal ken, of course,
very soon became the subject of inquiry, and diUgent inquiries
were made by his friends, and afterwards by the poUce and other
persons interested in seeing if his whereabouts could be discovered.
No trace whatever of Benton — unless some trace afterwards
was found in the fires — ever came to light. What is the proper
inference to draw from the disappearance of that man on that
night, in that way, from a district which is fairly closely inhabited ;
from his disappearance from a house where he was doing business
— what would anyone naturally conclude ? Men do not vanish
in air. There are no wells in the neighbourhood in which possibly
his body might be hidden ; there are no cliffs over which he
might have fallen ; there are no rivers which might have carried
Viim away ; there are no waterholes in which his body might lie.
What must one naturally conclude in such a case, particularly
when in the neighbourhood of the house from which he disappeared
there were found traces of a fierce fire of such great volume that
it consumed a great boxwood log of nearly three feet in diameter —
a fire evidently large enough and fierce enough to have consumed
the body of Benton ? In this fire were found charred human
remains — two small bones of a human foot. And in the
neighbourhood of the fire were found articles such as would be
CRIMINAL REPORTS, 1860-1907. 567
found in dress similar to that worn by Benton— a buckle, buttons, ^^^ "• ^^^n.
rivets, nails, tacks, part of the heel of a boot, and in the Cooper CJ.
neighbourhood, having evidently been subject to a keen fire,
was also found a spur, the fellow of a spur which undoubtedly
belonged to Benton. Benton was known to be wearing a spur
precisely similar to the one found on the day that he disappeared.
Taking these facts together, what is the reasonable conclusion
as to what became of Benton that night ? It seems to me
that the only reasonable conclusion is that Benton met with his
death by violence that night, and his body was burned in one
of the fires and his clothes in another. That seems to be the only
conclusion to which a reasonable person could come. I do
not think any other theory of his disappearance is reasonable,
and I think that there was abundant evidence before the jury
to prove that Benton was killed, and his body was burned. Any
rule of law which would exclude such evidence from the cognizance
of the jury would, I think, shock the common sense of the
community. The evidence is certainly circumstantial in its
nature, but I know of no rule, and I think there never has been
a rule of English law, which would operate to exclude from the
cognizance and consideration of a jury such cogent and almost
conclusive evidence of the death of Benton.
It being conceded that there was sufficient evidence for the
jury to satisfy them on the death of Benton, the next question
was. How did he meet his death ? Did the prisoner murder
him ? There is evidence on which the jury could reasonably
and properly come to the conclusion that the prisoner burned
the body that night, because he said he alone made those fires,
and he alone was responsible for them. That being so, there is
evidence that prisoner burned Benton's body, but that is not
necessarily evidence that he committed the murder. The
strongest evidence that the crime was committed by him is to
be found in his own statements, and the account which he
gave of his doings on that night. The prisoner said that he
got £125 from a man at Toowoomba on 2nd February in notes
and gold, and that on 4th February he handed over that exact
sum, and that specific amount of money which he received
from that man, to Benton, and got from Benton a document
showing that he had paid it over, and that Benton agreed to sell
him the selection. Soon after the bank opened on the 2nd
February prisoner banked the sum of £5, which it was known he
had before, and it was no part of the money which he said he got
568 QUEENSLAND JUSTICE OF THE PEACE.
Bex v. Eyan. from a man in Toowoomba. He banked that £5 at the Australian
Cooper C.J. Joint Stock Bank, and he got a cheque book containing twenty-five
forms. At 2 o'clock on that day he had one of those forms filled
up in the name of Benton for £125 by a clerk in an ironmonger's
shop. The prisoner said that he destroyed it because he did not
need it after he got the money from the man in Toowoomba —
the facts being, according to his own story, that he got the money
at one o'clock, and drew the cheque at two. He said that he paid
that £125 to Benton on the evening of 4th February. He declined
although pressed to give the name of the man from whom he got
the money, saying that he had promised him not to tell. He said
that the only security given by him to that man for the money
was a promise that he would brand the stock on the farm with
that unknown man's brand, and he would give him a mortgage
over the property when he got the transfer. It was, of course,
open to the jury to disbeheve the story told by the prisoner about
the obtaining, and the manner in which he obtained, the money.
For my part I certainly think that they would have been
exceedingly credulous if they had beheved it. To my mindj
it is an incredible story, and the jury were abundantly justified
in finding that it was not true. The prisoner's story is that Benton
had tea with him, and after tea he went out with Benton, and
Benton led his mare and foal down to the sliprails — this was after
the transaction of the sale was completed — and they went to the
house of a man named Konz ; he said he did that because he
wished to get a list which Benton had told him he had left at Konz's.
It was quite clear that Benton never could have told him anjrfching
of the sort, because Benton never left such a Hst. Moreover,
neither prisoner nor Benton went to Konz's that night. The
prisoner also gave an untrue statement with regard to attending
a meeting of the school committee, and with regard to Benton
having told him that the list must have been left in some dirty
clothes which he had sent to his sister's to be wr.shed. It was
shown that Benton never sent his clothes to his sister's, but
always sent them to Mrs. Neilson's. It is highly improbable
that Benton ever made such a remark to him. Further, the
prisoner said he paid Benton £125 on the evening of 4th February,
but he told his brother-in-law Kelly the next day that the sale
had yet to take place, and he had £125 in the bank to pay for the
selection. He also said that there were several Hsts of
subscriptions got up for his brother-in-law Kelly, whose house
had been burned down. That was not true. There was only
CEIMINAL REPOETS, 1860-1907.
569
one list ever in existence. Then he also told the extraordinary
story about the way in which he treated these fires, and the
strongest evidence of the prisoner's guilt really is contained
in these manifestly untrue and contradictory statements made by
him, and I can see no explanation of them which is consistent
with the prisoner's innocence. It seems to me that the jury
had no alternative but to find the prisoner guilty, and under those
•circumstances the questions which had been submitted should
be answered in this way : — " Was there evidence which should
have been allowed to go to the jury, there being no direct
evidence of an act of the prisoner likely to cause death ? " —
Yes, there was. " Was there evidence properly left to the jury
of the death of Benton ? " Yes, there was. " Was there evidence
proper to be left to the jury of the guilt of the prisoner ? " Yes,
there was. I therefore think that the conviction should be
Affirmed.
Bex v. Byan.
Cooper C.J.
Chttbb J. : The questions reserved for the consideration of the
'Court may be compressed into one, namely. Was the evidence
submitted to the jury legally sufficient to sustain their verdict ?
On that question several points have been raised on behalf of the
prisonerj first that there was no evidence of the death of any
human being ; second, no evidence that if any person was proved
to be dead that person was Benton ; third, no evidence of murder ;
iourth, no evidence that prisoner committed it ; and, fifth,
that the evidence, being entirely circumstantial, was insufficient
in law to prove the corpus delicti. With regard to the evidence
■of the death of a human being, and whether that human
being was Benton — assuming that circumstantial evidence could
be admitted to prove those facts — I have no doubt whatever
that there was sufficient evidence to justify the jury in saying
"Yes" to both those questions. It is not usual to burn
bodies in the bush. The evidence shows that a body had been
•consumed by a fire which the prisoner admitted he had kindled,
wherein the remains of charred human bones and certain articles
which constitute parts of a man's clothing of a kind similar to that
worn by Benton were found, and near the fire a spur belonging to
Benton was found in the brushwood. I think there was evidence
that a human body— a male body— had been burned, and that
that body was the body of Benton. It would be impossible, with a
crime committed under circumstances like those of this case, to
brmg home guilt to the prisoner if it had to be shown beyond any
Chubb J.
570 QUEENSLAND JUSTICE OF THE PEACE
Eext). Etan. doubt that the whole body had been burnt. A body put into
Chubb J. an intense fire usually leaves but a few ashes. If it had to be shown
conclusively, by direct or positive evidence, that there had been a
destruction of aU the vital parts (as was apparently laid down in
the Canadian case of The King v. Chas. King (1905, Canadian C.C.
426), it would be impossible to obtain a conviction where the
perpetrator of the crime had burned the body of his victim in a
fire so fierce as to entirely consume the vital organs of the body.
Evidence was given that part of a body, which might have been,
Benton's body, was destroyed in a fire. Are not the jury entitled,
on consideration of the facts clearly proved, the surrounding
circumstances, and the conflicting and false statements of the
prisoner, and on giving due weight to all, to infer other facts
which logically and reasonably follow from the facts proved 1'
I think they are, and I have no doubt whatever that sufBcient
evidence was given to justify the jury in finding that a body
had been burned in the fire and that the body was that of Benton.-
Now, the next question for the consideration of the jury was —
Assuming that Benton was murdered, was the murder committed
by the prisoner ? The jury have found so, and I certainly think,
there was abundant evidence from which the jury could draw that
inference from the facts proved, and from the statements made
by the prisoner — some inconsistent, some untrue, and some abso-
lutely irreconcilable — and from the whole of the surrounding cir-
cumstances. I think therefore that the jury were justified in com-
ing to the conclusion that Benton was murdered by the prisoner.
But it is contended that this has been proved by circumstantial
evidence alone, and that evidence which is only circumstantial is-
insufficient in law to prove the corpus delicti in a case of murder,
1 think we must hold on the English authorities and on the
opinions of all the English text writers that have been cited,
that any crime may be proved by circumstantial evidence, and by
circumstantial evidence alone. The cases of R. v. Franz (1861,
2 F. &. F. 580), R. V. Cheverton (1861, 2 F. & F. 833), R. v. Arm-
strong (1875, 13 Cox C.C. 184), R. v. Murphy (1867, 4 W.W. &
a'B. L. 63), Makin v. The Attorney-General for New South Wales
([1894] A.C. 57) are all authorities which support this view.
I do not know of any rule at common law as contended by counsel
for the prisoner, which requires that on a charge of murder the
fact of the death of the person alleged to have been murdered
must be proved by positive evidence. I am clearly of opinion
that by English law any facts establishing any crime may be
CEIMINAL REPOETS, 1860-1907. 571
proved by circumstantial evidence if that evidence is cogent ^^^'^ "■ ^■'*'*'
enough. No English authority has been cited to us which is chubb j.
contrary to this view, but the counsel for the prisoner relied on
the case of The King v. Chas. King (1905, Canadian C.C. 426),
decided by the Supreme Court of the North-west Territories of
Canada. The judgment of the majority of the Court in that
case was delivered by Newlands J., who, after stating that the
offence charged must be fully established, proceeds, " This rule as
applied in murder cases is laid down by Sir Matthew Hale (2
Hale's P.C. 290), where he says, ' I would never convict any
person of murder or manslaughter, unless the fact was proved to
be done or at least the body found dead.' " He then refers to
several English cases, and continues, " The same rule is followed
by the Courts of the United States. In The People v. Palmer
(1888, 4 Amer. S.R. 423), the Court reviews the principal English
and American decisions, and comes to the conclusion that the
rule is the same in both countries, and that the Penal Code of
that State, which provides that ' No person can be convicted
of murder or manslaughter unless the death of the person alleged
to have been killed, and the fact of the killing by the defendant
as alleged, are each established as independent facts, the former
by direct proof, and the latter beyond a reasonable doubt,' did
not change the rule of common law, but was only for the purpose
of declaring that rule in explicit terms." I do not know whether
the Penal Code of New York State was intended by the Legis-
lature to make a change in the common law, but in my opinion
the Penal Code of New York State is not a declaration of the
common law of England, and it never was a rule of the common
law that direct, as distinguished from circumstantial, evidence
of death is essential on a trial for murder.
The rule (more properly a caution) of Lord Hale not to convict
unless the fact was proved to be done, or at least the body found
dead, does not mean in the second case that the whole body must,
in all cases, be found and seen. If it were so, some terrible murders
would go unpunished. It means, in my opinion, only that the body
must be accounted for. I have already said that there was, in my
opinion, sufficient evidence to justify the jury in finding that the
body of Btoton was burnt in the fire, therefore the body was found
dead within the meaning of Lord Hale's rule. It was accounted
for.
Of course, when positive evidence is not given, it is possible that
some cases may occur which might lead to a miscarriage of justice.
572 QUEENSLAND JUSTICE OF THE PEACE.
Bex v. Eyan. but this happens, not by reason that a man is convicted on
Chubb J. insufficient evidence, but, by reason that the jury have drawn
a wrong inference from the facts proved. Such a case is that
mentioned in the remarks upon Mr. Cornish's trial (1685, 11
Howell's State Trials, at p. 464). "My Lord Coke relates a
story in his time of an uncle who beat his niece that had an
estate which, on her death, would descend to him. The girl
. was heard to cry, 'Good uncle, do not kiU me,' after which she ran
away, and concealed herself some few miles from London. The
girl being missing and the neighbours remembering the cry
of the girl, and tracking it to the probability that the uncle might
be induced, for his advantage, to murder his niece, apprehended
him, and he was indicted for it at the sessions ; and the judges,
not being satisfied in the evidence by reason of the body of the
supposed murdered girl did not appear, the uncle saying that
she was run away, they gave him time to the next sessions to find
her out, which he being not able to do thought to defend himself
by producing another girl very Uke his own niece, which he did
accordingly ; and, being detected, it increased the suspicion, and
by inferences from aU those circumstances, he was convicted,
and afterwards executed." That was a case in which the body
of the person supposed to have been murdered was never found,
and yet the person was found guilty, and the inference of guilt
was greatly supported by the false statements the prisoner
made. He, however, never committed the crime, for some years
afterwards the niece appeared and claimed her estate. In the
present case the prisoner has made many false, and many
, improbable, and many inconsistent, statements, and many that are
inculpating, and these were all material to go to the jury, and
the jury could draw such inferences from them as were reasonable
and proper, and I think that though the evidence estabhshing
his guilt was circumstantial, he was properly convicted. Of
course,'^ where the case for the Crown rests on circumstantial
evidence, the Judge in leaving the case to the jury should caU
their attention to the class of evidence, and caution them that they
must be careful in drawing inferences from the facts estabhshed.
This case was left to the jury with a proper caution. They were
practically directed by the learned Judge in the same manner
as Alderson B. directed the jury in Hodge's Case (1838, 2 Lewin C.C.
227) ; no objection was taken to that direction, and I think it
was the proper one to give. I therefore think that the conviction
should be affirmed.
CEIMINAL REPOETS, 1860-1907.
573
Power J. : I think it is perfectly plain that if direct evidence
of the corpus delicti is required in every case of murder, or, indeed
of any other criminal offence, very many guilty persons would
escape punishment. The whole matter in this case really is a
question of fact for the decision of the jury, and I think
that ample material was presented to them at the trial to
support the conclusion at which they arrived. The conviction
should be affirmed.
Real J. : Apart from the actual questions reserved, I thought
it was very desirable that the question of whether the law
appUcable here is similar to that prevaiHng in England or in the
State of New York should be considered by this Court, and I
am quite in accord with the opinions expressed by my learned
brothers.
Conviction affirmed.
Sohcitor for the Crown : The Crown Solicitor.
Solicitors for the prisoner : King & Rutledge, for J. Herbert,
Toowoomba.
Rex v. Ryan.
Power J.
Real J.
[Full Cottet].
CONNOLLY V. MEAGHER, Ex parte MEAGHER.
[1906 S.R.q. 125 ; Q.W.N. 23.— Note.— But see decision of Higli Court, 3 C.L.R.
682.]
Liquor — Licensed Victualler — Sale of liquor during 'prohibited hours
— Supplying liquor to a boy under the age of fourteen years —
Autrefois convict — The Licensing Act of 1885 (49 Vic, No. 18),
ss. 67, 15— The Justices Act of 1886 (50 Vic, No. 17), s. 43
The Criminal Code, s. 16.
The respondent, a licensed victualler, opened his hotel on Sunday for the
purpose of selling a bottle of liquor to a boy under the age of fourteen years, on
the representation that it was purchased for the boy's sick mother. The hotel was
not opened at any other time during that day. On these facts he was convicted of
having supplied liquor to a boy under the age of fourteen years — an offence against
s. 67 (5) of The Licensing Act of 1885. Subsequently he was charged on exactly
the same facts with having kept his house open for the sale of liquor during
prohibited hours — an ofEence against s. 75; subsec. 2, of the Act.
Hdd, that the Justices were right in applying s. 16 of The Criminal Code, and
holding that the respondent could not be convicted of the second offence.
1906.
13th, 19th,
February.
Cooper C.J.
Real J.
Chubb J.
Power J.
674
QUEENSLAND JUSTICE OF THE PEACE
A licensed victualler commits an offence against s. 75, subseo. 2, of The
Licensing Act of 1885, if he sells only one glass of liquor during prohibited hours.
Connolly v.
Meaoheb,
Meagheb. unless the sale be made to any person of the classes mentioned in the exceptions
contained in subsec. 4 of that section.
Case Stated by Jxtstices.
In a case stated by justices under s. 229 of The Justices Act
of 1886, the following facts appeared : —
Proceedings were taken against the respondent, a licensed
victualler, by the appellant, a sergeant of police, for having
kept his licensed premises open for the sale of liquor on Sunday.
The evidence showed that at eight o'clock on the evening of Sun-
day, 20th August, 1905, the appellant saw two boys go into the
respondent's hotel through the main entrance, and on following
them into the house he observed the respondent come from a
parlour at the back of the bar, and hand a parcel to one of the
boys ; this parcel contained a bottle of porter ; the boy paid
the price of the porter to the respondent ; he had on asking
to be supplied with the liquor stated that he was purchasing
it for his mother, who was sick. The respondent was convicted
of an offence under s. 67 (6) of The Licensing Act of 1885 for
supplying the boy, who was under the age of fourteen years,
with liquor. Subsequently he was summoned for committing
a breach of s. 75, subsec. 2, of the same Act. The Justices
dismissed the complaint, and gave the following grounds
for their decision : — (i.) The facts as disclosed by the
evidence show that the respondent was convicted on 31st
August for supplying liquor to a boy under the age of
fourteen years ; the evidence also disclosed that in the
oifence charged against the respondent, in this case, the
facts were exactly the same as those on which he was
convicted for the previous offence on 31st August ; the respondent
having been once convicted, we deemed one conviction sufficient,
and considered that, under s. 16 of The Criminal Code*, the
respondent could not be twice convicted for the same offence,
act, or omission on the same set of evidence, (ii.) that it was
proved beyond doubt that the hotel was strictly closed on the
* Criminal Code, s. 16. — A person cannot be twice punished either under
the provisions of this Code or under the provisions of any other law for the same
act or omission, except in the case where the act or omission is such that by means
thereof he causes the death of another person, in which case he may be convicted
of the offence of which he is guilty by reason of causing such death, notwithstand-
ing that he has already been convicted of some other offence constituted by the
act or omission.
CRIMINAL REPORTS, 1860-1907.
575
day in question for the sale of liquor except in the matter of
supplying the boy with a bottle of stout on the boy's representation
that it was for his sick mother, and this statement was verified
to be a fact by the two police officers who gave evidence, (iii.)
that if it was deemed necessary to take proceedings under both
sections, both offences should have been joined in the same
complaint under the powers contained in s. 43 of The Justices Ad
of 1886."
The question of law was whether the Justices had, on the
above facts and findings, come to a correct determination in point
of law.
Henchman, for the appellant : The Justices dismissed the
oomplaint upon a number of grounds set out in the case. Of
these it is necessary to deal only with the three first — That the
previous conviction for having sold to a boy under fourteen was
a bar to the second complaint ; that the hotel was strictly closed
on the Sunday in question, except on the one occasion of the sale
to the boy ; that the two complaints should have been joined
in the one information under s. 43 of The. Justices Act of 1886.
As to the first point, s. 16 of The Criminal Code, which enacts
that no person shall be twice punished for the same act or
omission, is merely a statutory declaration of the old common
law rule, " nemo debet bis puniri pro una et eodem delicto."
In this case the acts with which the defendant was charged
■were not the same. The one act is the selUng to a boy under
fourteen, the other the keeping open within prohibited hours.
The true test, as laid down in identical terms in Archbold, Criminal
Pleading and Practice, 22nd Ed., pp. 155, 159, Paley on Summary
Convictions, 8th Ed., p. 57-58, and Broom's Legal Maxims
(6th Ed.), pp. 330-331, has been lately approved by the High Court
in the case of Ex parte Spencer, Sherwood v. Spencer (1905, 2
C.L.R. 250), affirming the decision of the Full Court of New South
Wales (1905, 22 W.N. (N.S.W.) 40). This test is, " Would the
evidence that is necessary to support the second charge have been
suflScient to procure a legal conviction on the first ? " See also
R. V. Bingham (1881, 2 N.S.W.L.R. 90, at pp. 91-92). Applying
the above test, we have to look to the essential ingredients of
each offence. See the case of R. v. Hull, No. 2 (1902, St. R. Qd.
53), which shows that our law has not been altered by s. 16 of
The Criminal. Code.
In order to establish the offence of seUing liquor to a boy under
fourteen it is necessary to prove (a) that defendant is a hcensed
Connolly v.
Mkaqhbb,
Ex parte
Meaqheb.
576
QUEENSLAND JUSTICE OP THE PEACE.
Connolly v
Meagheb,
Ex parte
Meaghee.
victualler ; (6) that he sold liquor ; (c) to a boy apparently
under the age of fourteen ; (d) and that notice of intention to
prosecute was duly given within fourteen days. To establish
the offence of keeping open for the sale of liquor on a Sunday
(a) and (d) must be proved as above, but there is no need to prove
either (6) a sale of liquor on Sunday or (c) the age of the person
to whom such sale is made. It is clear, therefore, that the evidence
necessary to estabhsh a keeping open would not be sufficient
to procure a conviction for selling to a boy under fourteen.
As to the second point, proof of one sale upon Sunday, by
evidence which the Magistrates believe, is proof of the offence of
keeping open, and in such circumstances it is not competent to
the Magistrates to dismiss the charge. It is true that this would
not be the case under the English Act, where there are two
separate offences — viz., selling and keeping open for sale. But
our Act (s. 75) makes no distinction between selling and keeping
open. Nevertheless, our section clearly makes a sale within
prohibited hours an offence. This is shown by the proviso to
the section, which, despite the foregoing enactments of the
section, makes it lawful to sell within prohibited hours to lodgers,
bona fide travellers, and persons suddenly disabled and brought
to the premises. This proviso clearly proves the belief of the
Legislature that a sale within prohibited hours to other than
those excepted persons is unlawful.
On the third point, s. 43 of the Justices Act is merely permissive.
He also referred to Commissioner of Police v. Roberts ([1904] 1
K.B. 369).
O'Rourke, for the respondent : The Licensing Act of 1885
has not dealt with the matter of the sale of liquor on Sunday
in the same manner as the English or the New South Wales
Statutes ; and decisions under those statutes are of little
assistance in arriving at the meaning of s. 75. In England, by
s. 9 of the Licensing Act, 1874, three offences are created, selling
or exposing for sale during prohibited hours, opening or keeping
open the premises for sale during those hours, and allowing
intoxicating hquors to be consumed on the premises. The
offence of " keeping the house open for the sale of any liquor "
[The Licensing Act of 1885, s. 75) is a different offence to selling.
A sale is evidence from which it might, under certain circumstances,
be inferred that an offence against s. 75 (subsec. 1 or subsec. 2), was
committed ; but it is a matter of evidence, for by the exception in
CRIMINAL EEPOETS, 1860-1907.
577
6. 75, subsec. 4, it is clear that any quantity of liquor may be
sold on Sunday to a person injured, and that a reasonable amount
may be supplied to a lodger or to a traveller arriving from a
journey. Consequently, the sale of liquor on Sunday is not
necessarily an offence. What must be proved is that the house
is kept open. If sales were made to twenty persons during one
Sunday, there would not be twenty breaches of s. 75, but only
one— viz., the continuing offence of keeping the house open for
the sale of liquor. The case is analogous to cases of trading on
Sunday. If each sale was intended to constitute an offence,
the Legislature would have so stated, as in s. 63 of the Liquor
Act, 1898, New South Wales. Bell v. Walters (1898, 14 W.N.
(N.S.W.) 190). The test to be applied in considering whether a
house has been kept open for the sale of any liquor is whether any
person, not being within the exception of s. 75, subsec. 4, could
go in and obtain liquor. Pharmaceutical Society v. Hornsey
(1894, 10 T.L.R. 492). The finding of the Justices that the
hotel was strictly closed, except for the sale to the boy, shows
that the case will not endure the application of this test. The
Justices were not compelled to find the place was kept open.
Gommissioner of Police v. Roberts ([1904] 1 K.B. 369). The
respondent made the sale under exceptional circumstances,
and these exceptional circumstances take the case out of the
wordiag of s. 75, and therefore no offence against s. 75 was
committed. If the mere act of seUing on Sunday constitutes an
offence, the conviction in the first case was a bar to a second
prosecution, for only one act was done by the respondent on 20th
August, which could be held to involve a breach of The Licensing
Act of 1885, and the respondent was punished for that particular
act. The Criminal Code, s. 16.
Connolly v.
MsiaHEB,
Ex parte
Me&oheb.
Cooper C.J. : The defendant in this case was charged with
keeping his house open for the sale of liquor on Sunday. He
had previously been convicted, under s. 67 of The Licensing Act
of 1885, of supplying liquor to a boy under the age of fourteen,
and upon evidence which was identical with the evidence given
to substantiate the present charge of keeping his house open
for the sale of liquor on the Sunday. The Magistrates refused
to convict on the second offence, and this appeal is from their
refusal. The section under which the defendant was proceeded
against is s. 75, subsec. 2, of The Licensing Act of 1885, which
enacts : — " No licensed victualler or wineseUer shall keep his
MM
Cooper C.J.
578
QUEENSLAND JUSTICE OF THE PEACE.
Connolly v.
Meaqheb,
Ex parte
Meaqheii.
Cooper C.J.
house open for the sale of liquor on Sundays." The next subsection
prescribes the penalty, and subsec. 4 enacts, " Provided that,
subject otherwise to this Act, nothing in this section contained
shall be construed to prohibit the sale of "any liquor by a licensed
victualler at any time to any .... lodger in the licensed
premises, or a bona fide traveller seeking^efreshment on arriving
from a journey, or to a person suddenly disabled by accident or
sickness, and brought to such premises. . . ." The English
Licensing Act makes it an offence to sell or expose for sale or
keep open for the sale of intoxicating Uquors during prohibited
hours. Our section uses the words, " for the sale of liquor on
Sundays," and the question arises whether the sale of liquor
in licensed premises is conclusive proof that the house is kept
open for the sale of Uquor — ^that is to say, whether the mere act
of selling liquor on Sunday constitutes an offence against s. 75,
subsec. 2. I am of opinion that it does, with the exception
that a sale is permitted to those persons mentioned in subsec. 4,
to which I have referred. It seems to me that the proper inference
to be drawn from a consideration of the whole of that section
is that if the exceptions made by subsec. 4 did not exist, it would
be an offence under Subsec. 2 to sell liquor on Sunday to any
person, whether the person be a lodger, a traveller, or a person
injured — that is to say, if it had not been for these exceptions,
the licensed house would be deemed to be kept open for the sale
of liquor if liquor was sold to any person, and I am also of
opinion that where a licensed victualler sells even one glass of
liquor to any person in his house on Sunday, the proof of that
sale is proof that he kept his house open for the sale of liquor, unless
he alleges, and proves that the person suppUed was a lodger,
traveller, or person disabled (s. 75, subsec. 5).
The Justices who heard the case say definitely that it was proved
beyond doubt that the hotel was strictly kept closed on the day in
question, except in the matter of supplying a boy under the age
of fourteen with a bottle of stout on the representation that it was
for his sick mother ; and that was verified by two police officers.
Now, the pubhcan had already been convicted of selling the Hquor
to the boy, and that was the very act which constituted the
other offence. I think that s. 16 of The Criminal Code, which
enacts that a person cannot be twice punished for the same
act or omission, applies to this case. It seems to me on the
findings of the Justices that this was the same act, and therefore
the pubhcan could not be twice punished. It is not .necessary to
CEIMINAL KEPORTS, 1860-1907.
579
decide whether a conviction under all circumstances amounts
to a punishment, but I am of opinion that this conviction cannot
be sustained, because it involves putting the pubUcan in a worse
position, and is a punishment to him. (Of., The Licensing Act of
1885, ss. 41, subsec. 4, 86, and 103.)
Real J. : I am of the same opinion, but make some reservation.
I wish to guard against any idea that the two charges made against
the defendant are to be regarded as the same offence. They
are not the same offence ; but are two different offences
flonstituted by one and the same act done by the defendant.
So, but for the fact that the Justices in this case have expressly
found that the same keeping open of the licensed house was the
act constituting each of the charges made, I might have felt
greater difficulty ; but their finding is that " it was proved beyond
doubt that the hotel was strictly closed on the day in question
for the sale of liquor except on the occasion of supplying the boy,"
and I think the appeal should be dismissed. I also agree in
thinking that the sale of any liquor by a licensed victualler on
Sunday to any person is an offence against s. 75, subsec. 2, unless
that person falls within one of the classes of persons mentioned
in the exceptions set out in s. 75, subsec. 4.
Chttbb J. : I agree. I think it is quite clear that two offences
were committed, but that there was only one transaction, and
by the operation of s. 16 of The Criminal Code the defendant,
having been punished for this one transaction by being convicted
of one offence, was not liable to be punished for the other offence.
I prefer to reserve the question whether a conviction in all cases
is to be regarded as a punishment, but in this case I think it is,
because convictions against pubUcans for offences against The
Licensing Act of 1885 carry certain consequences. If two
convictions are made within twelve months an objection to a grant
or removal or transfer of the license may be taken (vide ss. 41
{4), 42, and 43), and if within a Uke period three convictions
are recorded, the Justices before whom the third conviction is heard
may adjudge the license forfeited (vide s. 103). So it is clear that
the defendant, as a licensed victualler, would be punished by
being convicted on the second charge preferred against him.
PowEE J. concurred.
Solicitor for the respondent : J. W. O'Mara.
Solicitor for the appellant : The Crown Solicitor.
Connolly v.
Meaqheb,
Mx pane
Meaqheb.
Cooper C.J.
Beal J.
Chubb J.
Power J.
580 QUEENSLAND JUSTICE OF THE PEACE.
[Full Coubt.J
R. V. PATTERSON.
[1906 Q.W.N. 32.]
1906. Criminal law — Charge of receiving stolen property — Verdict of
12th Jme. having possession of stolen property knomng it to have beetle
Cooper C.J. stolen.
Beat J.
_! Grown Case Reserved.
The prisoner was charged on an indictment containing two-
counts — one for steaUng a horse and the other for having received
the horse, which had been lately stolen, knowing him to have been
so stolen. The following facts were then proved by uncontra-
dicted evidence : — The horse was the property of Walter Hooker^
who had turned the horse loose, in hobbles, together with several
others. Soon after being so turned loose the horse was missed,
and could not be found. Some considerable time afterwards.
Hooker saw the prisoner riding the horse, and at once claimed
the animal as his property. The prisoner, while not directly
denying the claim made by Hooker, decUned to recognise it, and
rode away. Subsequently, a constable went to a place where
the prisoner was camped, and near the camp saw the horse,,
hobbled and furnished with a flybeater, together with two mares,,
one of which carried a bell. In answer to an inquiry by the
constable as to where his horses were, prisoner said, " Over
there," pointing in the direction of three animals. The constable,
accompanied by prisoner, went over to where the animals were,,
and, in reply to the constable's question, " Are these three horses
your property ? " prisoner said that the mares were his, but he
did not know to whom the horse belonged.. The constable then
arrested the prisoner on suspicion of stealing the horse, when the
prisoner said, " Right, but bear in mind you did not catch this
horse in my possession." No evidence was given for the defence.
The jury found the following verdict : — " We find the prisoner
guilty of having possession of the stolen property, he knowing it
to have been stolen."
Rutledge D.C.J, told the jury that he regarded the verdict as
equivalent to a verdict of not guilty on the first count, and directed
them that they ought to have no difficulty in formulating their
verdict as one of guilty on the second count, and gave them an
opportunity for further consideration, but the jury refused to
alter the form of their verdict. The Judge treated the finding
CEIMINAL REPORTS, 1860-1907:
581
as a verdict of guilty on the second count, and reserved the question ^* ■"• P^tteeson.
for the consideration of the Pull Court whether he was right in
treating the finding of the jury as a verdict of guilty on the second
count of the indictment, and in passing sentence upon the prisoner
accordingly ?
Saikeld referred to The Criminal Code, s. 433, Reg. v. Binge
(Digest of Criminal Law, Eagleson, Sanderson & Brennan,
Col. 524).
Cooper C.J., in delivering the judgment of the Court, said :
It is quite clear that the special finding of the jury in this case
is consistent with the innocence of the prisoner. ' The jury found
that the prisoner was guilty of having possession of stolen property,
he knowing it to have been stolen. It they had considered him
to be guilty of receiving stolen property they ought to have
found that he was guilty of having received the property knowing
that it had been obtained by stealing. But their finding is
quite consistent with the fact that the prisoner discovered the
property had been stolen after he had received it, and we therefore
think the learned District Court Judge was not correct in his
decision. The verdict and judgment wiU be set aside, and a
verdict of not guilty entered on the record.
SoUcitor : The Crown Solicitor.
Cooper C J.
[Fttll Court.]
McNAMARA v. JENKINS AND OTHERS, Ex parte JENKINS
AND OTHERS.
[1906 Q.W.N. 47.]
Criminal law— Cattle suspected to have been stolen — Possession or
custody of part of carcase — The Criminal Code, s. 446 —
Evidence — Amendment of conviction — The Justices Act of
1886 (50 Vic, No. 17), s. 223.
Order Nisi for a Quashing Order.
About 11th April, 1906, two teams owned by John Jenkins left
Camooweal and preceded along the road in the direction of
Urandangie. John Jenkins was in charge of the teams, and with
him were two servants, Thomas Jenkins and Crosby. A few days
after leaving Camooweal the teams camped at Nowraine Creek,
1906.
Cooper C.J.
Beal J.
Power J.
582 QUEENSLAND JUSTICE OP THE PEACE.
MoNamara«. and tjien proceeded to Waroona Creek, when John Jenkins
Othebs, Ex parte returned to Gamooweal, leaving the teams and the other two men
Jenkins AND to continue the journey under the charge of Crosby. On 21st
' April an ox, which had apparently been shot four or five days
before, and from which portions of the flesh had been removed,
was found lying away from the road in a small clump of trees in
the vicinity of Nowraine Creek, where the teams had camped.
This ox belonged to Mr. Kidman. Tracks of two men and three
horses were discovered all round the dead animal and leading
thence in the direction of the camp. At the camping place itself
the marks of the waggon wheels were seen, and about half a hun-
dred-weight of old salted beef which had been thrown away, was
found. There were also clear indications that fresh meat had been
salted down at the place. Subsequently the place was again visited,
when it was discovered that in the meantime some of the salt
beef had been removed and burnt, and a fire had been made
on the place where the salting of the beef had been done. The
teams continued on their way, and when nearing Urandangie
were visited by a constable, who found a rifle and about fifty
pounds of salt beef ia the waggon driven by Crosby, which might
have been taken from the ox which had been killed. At different
times subsequently all the defendants gave explanations of the
manner ia which possession was obtained of the beef found in the
wagon, and the reason for throwing the salt beef away at Nowraine
Creek, which it is not necessary to detail. They were, however,
contradictory and unsatisfactory in many respects, and in some
particulars absolutely untrue.
These three men were charged with having ia their possession
part of the carcass of an ox which was suspected on reasonable
grounds to have been stolen. Section 446 of The Criminal
Code. AU were found guilty, and fines were inflicted and in
default of payment imprisonment was imposed. The Magistrate
also made an order that the three defendants should pay the value
of the ox (£5 lOs.).
An order nisi to show cause why the conviction should not
be quashed was obtained on several grounds.
Douglas moved the order absolute. The defendants were
charged with having part of the carcass of the ox ia their possession;
the possession could not be in all three ; if any person had
possession it was the owner of the teams, John Jenkins. Crosby
had only custody, and Thomas Jenkins had neither, and so the
CEIMINAL REPORTS, 1860-1907.
583
Others.
latter two were not guilty of the offence charged. Cf. Ball v. MoNamakai;.
Humphreys, Ex parte Humphreys (1903, St. R. Qd. 250), Molloy Oi^^Xs^Ex^parte
y, Hallam (1903, St. R. Qd. 282), The Criminal Code, s. 446. Jenkins and
And as the beef was not found in the possession of John Jenkins,
his conviction also was wrong. Simmons v. Milligen (15 L.J.
C.P. 102), Pollock and Wright on Possession, p. 20. The evidence
is not sufficient to support the charges made. The complaint is
bad for duplicity.
Woolcock showed cause. The facts, the surrounding circum-
stances, the contradictory and unreasonable accounts, are
sufficient to support the Magistrate's decision that an offence
against s. 446 was proved. Evidence giving rise to a reasonable
suspicion that an ox had been stolen was given, portion of an
animal was found, and the defendants failed to prove that they
came lawfully by the possession of the beef found. Each
defendant was guilty, for the beef was in the joint possession of
all^t was common property, used in common. PoUockand
Wright on Possession, p. 26 ; E. v. MalKson (20 Cox C.C. 204).
The word " possession " in the complaint is wide enough to cover
actual or constructive possession or custody. In any event
the complaint could have been amended. The Justices Act of
1886, ss. 48, 49, and 223 ; Paley on Summary Conviction, 8th
Ed., pp. 287-289.
Douglas, in reply, referred to Sijone's Justices Manual, 30th
Ed., p. 34 ; Loadman v. Cragg (26 J.P. 743), and E. v. Bricknall
(10 Jur. N.S. 677).
CooPEK C.J. (after stating the facts, continued) : Under these
circumstances, the Magistrate found these three persons guilty of
being in possession of the beef of an ox suspected on reasonable
grounds to have been stolen. I am of opinion that it was clearly
open to the Magistrate, on the evidence, to come to the con-
clusion that John Jenkins and another man— either Crosby or
Thomas Jenkins— stole this beef and salted it at the place where
the teams had camped, for the tracks of two men were found around
the dead beast and leading therefrom towards the camp, where
undoubtedly beef had been salted. If John Jenkins and Crosby
stole the beef and carried it away, it belonged to them by wrong
as against the rest of the world except the real owner, and John
Jenkins must be regarded as having possession of his share of it
during the time he accompanied the waggons. When he left
Cooper C.J.
584
QUEENSLAND JUSTICE OF THE PEACE,
McNAMykBA V.
Jenkins and
Others, Ex parte
Jenkins and
Others.
Cooper C.J.
Beal J.
Power J.
the other men, did he thereby lose his right of possession in it ?
It is perfectly clear that if he had rejoined the party at any time
he would have been entitled to claim his share of the meat.
Therefore, although John Jenkins was never actually found
physically and personally in possession of any meat, it seems
to me that as Crosby was found in custody of the portion belonging
to John Jenkins, his custody as to that part did not take from
John Jenkins the possession he had acquired by wrong to that
portion, and John Jenkins was never really out of possession of
his share at aU. As to Crosby, there is no question. The meat
was found on his dray — he was actually found in possession of it.
With regard to Thomas Jenkins, as no evidence was given before
the Magistrate to prove that any meat was found either in his
possession or his custody, I do not think that he could be properly
convicted of the offence charged, even if he had been involved in
stealing it, for he was not a " person in whose possession or
custody . . . any part ... of the animal ....
is found." The conviction of John Jenkins and Crosby wiU be
confirmed, and that of Thomas Jenkins quashed. The Magistrate
had no power to make an order directing the defendants to pay
the value of the ox, and the conviction must be amended by
striking out that part.
Real and Power JJ. concurred, and the conviction of John
Jenkins and Crosby was confirmed, and that of Thomas Jenkins
quashed, with costs.
Solicitors : Roberts <fe Roberts, for Roberts, Leu & Barnett,
TownsviUe : The Crown Solicitor.
CRIMINAL EEPORTS, 1860-1907. 585
[Full Court.]
McNAMARA v. EDWARDS, Ex parte EDWARDS.
[1907 S.R.Q. 9 ; Q.W.N. 5.]
Criminal Law — Confession — Inducement — Evidence — Admissibility 1906.
—The Criminal Law Amendment Act of 1894 (58 Vic, No. 23), ^5"»> 5"*'*' 3^«'
i„ J, October.
S. 10.*
, , . , , Cooper C.J.
At the hearing of a complaint in a Court of Petty Sessions a confession was Real J.
admitted in evidence against E. There was some evidence that before E. made Power J.
the confession, the constable, to whom it was made, told him that " any statement
made would be for his benefit." The constable stated that he had no recollection
ot having used these or any similar words. E. gave evidence that the constable
4id not use any threat or hold out any inducement in order to obtain the confession.
Held, per Curiam, that if the words were used, the confession was not freely
and voluntarily made and was wrongly admitted.
But held on the facts (per Cooper C.J. and Power J.), that as the Magistrate
would have been justified in finding that the words were not spoken at all, the
Court ought to presume he did so find, and uphold the decision.
Per Real J., that as there was no express finding that the words were not used,
and as the mind of the Magistrate was not, in admitting this evidence, directed to
-a oonBideration of the law in respect to the admissibility of confessions by accused
persons, the Court ought not to presume he came to any conclusion on the
question, although on such a finding his decision could be supported.
Oedee Nisi to Quash a Conviction.
The defendant was charged before a Court of Petty Sessions
with illegally branding certain cattle, an offence against s. 447 of
The Criminal Code, and was convicted and fined £50, and in default,
.sentenced to six months' imprisonment. An order nisi calling
on the Justices and complainant to show cause why the conviction
should not be quashed was obtained on a number of grounds,
aH of which are immaterial on the view taken by the Court,
Twth the exception of one — viz., the wrongful admission in evidence
of a confession by the defendant. The evidence given at the
hearing proved conclusively the commission of the offence, and
ihe substantial question raised on appeal was whether the
Magistrate was right in admitting the confession in evidence.
It appeared from the evidence that on 17th May, 1906, Constable
Cameron, after having a conversation with the defendant, during
* 58 Vic., No. 23, s. 10 : No confession which is tendered in evidence on any
•criminal proceeding shall be received which has been induced by any threat or
promise by some person in authority, and every confession made after any such
threat or promise shall be deemed to have been induced thereby unless the contrary
be shown.
586
QUEENSLAND JUSTICE OP THE PEACE.
McNamaka v.
EnWAEES,
Ex parte
Sdwabos.
which he admitted branding certain cleanskins, obtained a
confession to the effect that the defendant had branded about
thirty head of cattle and calves, of which he did not know the
owner. The constable swore that " Before I got the statement
I did not offer any inducement or make any threat to get the
defendant to make it. I reduced it to writing, and read it to
him. He signed it." This statement was witnessed by W. M,
Taylor, who gave evidence that he advised the defendant not to
make a statement, but that the defendant said he would do so,
and that Cameron told the defendant that " any statement
made would be for his benefit," and that " it was just a matter
of form signing them." On 19th May Cameron obtained another
statement signed by the defendant, in which he admitted
mustering and branding cleanskins which did not belong to him,
and that a man named Findlay assisted him. On this occasion
also Cameron said that he offered no inducement to the defendant
nor threats to obtain the statement. In cross-examination
Cameron further said he did not remember saying to the
defendant that any statement made would be for his benefit.
On 18th May another member of the police force, Sergeant
McNamara, obtained a statement from a man named Findlay,
and on 29th May he saw the defendant ; told him he would
read Findlay's statement to him, and said, " Remember you are
not under arrest. Any replies you make may be used agaiast
you at your trial if there is a trial." He then read Findlay's
statement, and said, " I understand you made two statements
to Constable Cameron — one on 17th May and one on 19th May,
I see that the statement you made to Constable Cameron on 17th
May is witnessed by W. M. Taylor." Defendant said, " Yes,
I made those statements to Cameron." McNamara then read
the statement, dated 19th May, to the defendant, and asked
him if it was correct, to which the defendant said, " Yes, that is
correct." McNamara also asked the defendant, in the presence
of Constable Cameron, " Did Constable Cameron use any threat
or hold out any inducement to you to make this statement ? "
to which the defendant answered, " No, he did not."
At the trial, in the Court of Petty Sessions, the defendant
objected to the admission of those statements, basing his
objection on the ground that they had not been witnessed by a
Justice of the Peace, but they were admitted.
Douglas moved the order absolute. The confession of 17th
May was wrongly admitted, being induced by the constable'^
CRIMINAL REPORTS, 1860-1907.
587
assertion that " any statement made would be for his benefit," McNamabajj.
and that "it is just a matter of form." The Criminal Law Bx parte
Amendment Act of 1894, s. 10. It was not a free and voluntary Edwards.
confession. It is quite clear that the words used could operate
as an inducement, and it must be shown affirmatively and clearly
that the defendant was not influenced thereby. The Queen
V. Thompson ([1893], 2 Q.B. 12). The presumption is that
they were an inducement, and the evidence taken altogether
raises a strong doubt, and they should have been rejected. Reg.
V. O'Keefe (1893, 14 L.R. (N.S.W.) 345), PoweU on Evidence,
7th Ed., p. 258, Taylor on Evidence, 10th Ed., s. 878. The
inducement held, out on the first occasion prevents the admission
of the confession subsequently made. Eeg. v. Laird ([1893]
14 L.R. (N.S.W.) 354).
Henchman showed cause. I must, on the authorities, admit
that the words are capable of amounting to an inducement in
law, but on the facts of this case it is clear that they did not
operate to raise any hope or fear in the mind of the defendant,
and were not used or considered by the constable as an inducement.
On the evidence it was open to the Justices to come to the con-
clusion first, that the words were never used, and, consequently,
there was no inducement ; secondly, that if they were used, they
did not in fact operate as an inducement ; and, thirdly, that if
the confession of 17th May was improper, the re-affirmation of
guilt on 19th May, after the defendant had been cautioned, was
voluntary and admissible. R. v. Howes (1834, 6 C. & P. 404),
R. V. Bryan (1834, Jebb C.C. 157). The prosecution suppUed
ample evidence to discharge the onus of showing the contrary
under s. 10 of The Criminal Law Amendment Act of 1894. The
defendant's answer can only mean that no inducement influenced
his mind. On the evidence the Magistrate was justified in ad-
mitting the confession for either of the above reasons, and this
Court will not interfere. The objection now made to the admission
of the confession was not taken in the Court below.
Douglas, in reply : Russell on Crimes, 6th Ed., Vol. III., pp.
496-498-499, where R. v. Smith and R. v. Compson are cited ;
and Reg. v. Doherty (1874, 13 Cox C.C. 23).
CooPBE C.J. : The defendant in this case was convicte,^ of Cooper C.J.
brandmg a number of cattle of which he was not the owner, an
offence against s. 447 of The Criminal Code. He has appealed
688
QUEENSLAND JUSTICE OF THE PEACE.
McNamaba v.
Edwabds,
Ex parte
Edwakss.
Cooper C.J.
against that conviction on a number of grounds, one of them
being that evidence was wrongly admitted against him. As far
as the merits of the case go, it is not open to doubt that the
defendant was guilty of branding the animals. But he made an
admission of his guilt to a constable, which was put into writing,
and admitted in evidence against him, and it is now alleged that
he made that confession in consequence of a promise made,
or an inducement offered to him. The nature of that inducement
is said to be that the constable told him any statement made
would be for his benefit. The only evidence that any such
thing was said is the evidence of Taylor, who had instituted the
prosecution against the defendant. Taylor was very iU at the
time, but he certainly said that the constable had used these
words. It does not, however, appear whether they were spoken
before or after the making of the confession, and the constable
himself, in his evidence, said he had no rememberance of ever
having used the words ; he also said that before he got the
statement he offered no inducement, and made no threat to get
the defendant to make it. The defendant definitely stated
that the constable used no threat, and held out no inducement
to him to make the statement, and therefore, as far as the
defendant himself is concerned, the words if they were
used, were not regarded as any inducement. It was argued
that the evidence of the constable on the whole amounts to a
statement that he may or may not have used the words, but
that he did not consider them to be an inducement, and never
intended that they should be so regarded. But if the words were
used, and the Magistrate admitted the confession on the view
that they did not amount to an inducement, he was clearly
wrong, and the conviction could not stand, for~fchere are numerous
cases showing that when an expression of this nature is used,
preceding a confession, it amounts to an inducement. I think
it is our duty to uphold the decision of the Magistrate if we can
do so on a reasonable construction of the evidence. There is
no doubt the case is not free from some difficulty — diflSculty
which does not arise from any ambiguity as to the principles of
law, but arising on the application of well-known principles to the
particular facts of this case — but I think we may assume that the
Magistrate believed that the words were never used, and that
no inducement was made. The constable had no recollection
of u'sing the words, and he said he made no inducement, while
the defendant asserts that no inducement was offered to him.
CRIMINAL REPORTS, 1860-1907.
589
Under the circumstances, I do not think it is unreasonable to
come to the conclusion that the Magistrate did not believe the
words were used at all, and on that assumption his decision was
clearly right. I therefore think that the order nisi should be
discharged.
Real J. : I am not able to agree with my learned brothers
in this case. I am entirely in accord with them on the
principle of law applicable to the admissibility of confessions,
but differ concerning the inferences of fact which should be
drawn from the evidence in this case. The chief evidence is
that given by Taylor, which is somewhat general in terms,
who said he was present on the 17th May, the date of the first
confession. The defendant signed a statement drawn out by
Constable Cameron. He saw it signed by the defendant, and
witnessed it. He told the defendant not to make any statement,
and that the constable obtaining the statement told the defendant
that any statement made would be for his benefit. When
witnessing it he also told the constable it was no use to him,
as it should be witnessed by a Justice of the Peace. Now, when
that statement, which contained an admission of guilt, was
tendered and admitted in evidence, the defendant objected to
it, on the ground that it was not signed before a Justice of the
Peace, probably the only ground of objection of which he was
aware. Another statement signed by the defendant, and made
to the same constable a few days afterwards, was also tendered
as a confession. On 29th May Sergeant McNamara gave evidence
that he read these statements over to the defendant after he
had warned him that any replies made might be used against him
at the trial, if there was a trial, and asked the defendant if
Constable Cameron used any threats or offered any inducement
to him to get him to make them, to which defendant answered
" No, he did not." The evidence of Cameron, who was present
at the time, is to the same effect. He says, " Before I got the
statement (i.e., the statement of 17th May), I did not offer any
inducement or make any threat to get him to make it," and he
says the same thing in reference to the other statement. We
have therefore the testimony of these two officers to the same effect,
and the evidence of the defendant. On the other hand, we have
the evidence of Taylor, who told the defendant not to make
a statement, and who says the defendant was told that any
statement would be to his benefit. Now, Cameron states in
cross-examination that he did not remember whether he used
McNauaba V,
Edwabds,
Ex parte
Edwards.
Cooper C.J.
Seal J.
590
QUEENSLAND JUSTICE OF THE PEACE.
McNamaba v.
Edwards,
Ex parte
Edwards.
Beal J.
Power J,
these words or not. It is significant, however, that as Constable
Cameron says in cross-examination, the defendant gave every
assistance in recovering these cattle. As the learned Chief
Justice has pointed out, the use of these words, or of words
similar, is suflficient in law to amount to an inducement, and if the
statement was made in consequence of these words, it is clearly
not admissible as an admission. Now, when the statement of
19th May was tendered, the defendant took objection to it on
the ground that it was not witnessed by a Justice of the Peace.
That, of course, was not a valid objection, but most likely the
only one known to the defendant, and probably based on the
remarks made by Taylor. No objection was taken that the
statement was inadmissible as being a confession improperly
obtained. Nothing was said to direct the attention of the
Magistrate to the precise point of whether this confession was
free and voluntary, and I am of opinion, considering the whole of
the evidence and the manner in which it came out at the trial, that
the Magistrate did not take into consideration, in determining the
admissibiUty of this evidence, the principles which should be
applied, nor did he direct his mind to the fact whether any induce-
ment had been offered, and therefore I do not think we can assume
that he made a finding that the words used did not operate as an
inducement. If the Magistrate beheved that the words were never
used, and so could not possibly exercise any influence, his decision
may be supported ; but I confess I do not see how he could come
to that conclusion on the evidence. If that was the ground, then,
of course, this case will not stand as an authority for saying that
the evidence such as was here given is sufficient in its nature to
satisfy Justices that a statement made under similar circumstances
has been obtained properly, freely, and voluntarily.
Power J. : I think the evidence was rightly admitted for the
reasons given by Cooper C.J.
Order discharged, with costs.
Solicitor for complainant : The Grown Solicitor.
Solicitors for defendant : Roberts <b Roberts, for Roberts, Leu &
Burnett, Townsville.
GEIMINAL REPOETS, 1860-1907. 591
(Full Coxtbt.]
REX V. JOHNSTONE.
[1907 S.R.Q. 155 ; Q.W.N. 51.]
Jury — Challenge — Ordering juryman to stand by — Right of Crown •^^''''■
to challenge or order juryman to stand by — Time at which ^'^^•^^^'^V-
Crown is compelled to show cause of challenge — The Jury Cooper GJ.
Act of 1867 (31 Vic, No. 34), ss. 22, 33. f^^^fj^
The Crown may apply to the Judge to order a juryman to stand aside at any
time during the empannelling of the jury, and this application is an application
to the discretion of the Judge.
The Crown is not bound to show cause for its challenges as soon as the panel
has been called a second time, imless it appears that the inquest will not be taken for
default of jurors if the Crown is not called upon to show cause.
Ckowu Case Reserved.
The facts appear fully in the case stated by Real J., which
was as follows : —
The prisoner, Edward Johnstone, was indicted for that he
on the 23rd January, 1907, at Kroombit, near Cania, in the
State of Queensland, stole fifteen cows and fourteen calves,
the property of one Andrew Harper Stirratt ; and further, that on
23rd January, 1907, at Kroombit, near Cania aforesaid, he, the
said Edward Johnstone, received fifteen cows and fourteen calves
the property of the said Andrew Harper Stirrat, which had then
lately been stolen, and that he, the said Edward Johnstone, then
knew that the said fifteen cows and fourteen calves had been
so stolen.
The prisoner pleaded not guilty. My associate proceeded
to draw the jury cards from the jury box, calling out the names
as they were drawn from the box, and setting aside, in accordance
with the usual practice of the Court, the cards containiag the
names of such as were not chosen and sworn as jurymen to try the
issues. The whole of the jurors having thus been called, and a
jury not obtained, notice thereof was given.
The names of those jurors not empannelled were again called
in the order in which they had been drawn from the jury box,
the prisoner being then limited in his challenges to the number
prescribed by the Jury Act.
The prisoner exercised his right of challenge to the full extent,
and the names of such jurors as were challenged by the prisoner
were set apart from the names of the jurors stood aside by the
592 QUEENSLAND JUSTICE OF THE PEACE.
Kex «. Johnstone Crown Prosecutor. The whole of the jurymen not previously
empannelled were thus called, but a full jury was not obtained.
My associate thereupon proceeded to ^again call the names
of the jurors set aside by the Crown in the order in which such
names had been drawn from the jury box, and called Robert
Ritchie. The Crown Prosecutor again asked that juryman to
stand aside. Mr. Power, counsel for the prisoner, objected, and
submitted that " the names oh the jury panel having been already
called over twice, and Ritchie's name now being called for the
third time, the challenge of the Crown Prosecutor should not be
allowed, unless he successfully shows cause for his challenge."
I decided that, in accordance with the practice of the Court,
the Crown could so stand aside a juror without showing cause,
if there were amongst those to be called a sufficient number of
jurymen to form a jury, notwithstanding that juror not being
selected. And the Crown Prosecutor, insisting on his objection
to the juryman without showing cause, the juryman stood aside,
and another name was called.
Mr. Power asked me to reserve the point for the consideration
of this Court, and the calling of the jury was proceeded with.
At the close of the case and before the verdict of the jury,
Mr. Power again asked me to reserve the point as to the Crown's
right to stand aside for the opinion of this Court.
The jury found the prisoner guilty on the first count. I
sentenced him to two years' imprisonment, with hard labour,
respiting execution, and committing the prisoner to prison,
until the questions reserved had been considered and decided by
this Court.
The questions for the consideration of this Court are — ■
1. Did allowing the Crown to stand aside the juryman
Ritchie and other jurors under like circumstances
invalidate the trial and conviction ?
2. Has the Crown a right to so stand aside under such
circumstances ?
3. Is it a power exercisable only by permission of the
presiding Judge, and is it in his discretion to permit
or refuse to allow such a standing aside without good
cause shown ?
Power, for the prisoner : The answers to the questions
submitted involve the construction of s. 33 of The Jury Act of
1867 (31 Vic, No. 34). That section enacts that when the panel
has been gone through, the Crown can challenge only for cause.
CRIMINAL REPORTS, 1860-1907. 593
The Crown has no peremptory right of challenge, and although the ^^^ "■ Johnstonb
Crown may challenge on the second calling of the panel, deferring
the showing of cause till the panel is gone through, after that time
no challenge is good unless cause is forthwith shown. 2 Hale
P.C. 271, 2 Hawkins P.O., c. 43, ss. 2, 3 ; E. v. Geach (1840,
9 C. & P. 499), R. V. Warden (1898, 9 Q.L.J. 49). The plain
meaning of s. 33 is that cause for challenge must be shown by
the Crown, and this must be done in all challenges made after the
panel has been called a second time. That is the interpretation
placed on the section by Harding J. in R. v. Shaw (1885, 7 Q.L.J.
(N.C.) Ill), and although a practice seems to exist contrary to
that interpretation (cf. E. v. Freeman (1895, 6 Q.L.J. 281, per
Griffith C.J.), the Court is not bound to declare in favour of that
practice. That practice is based on the statement of the law
by Bramwell B. in Mansell v. The Queen (1857, 27 L.J.M.C. 4).
[Real J. : E. v. Freeman (1895, 6 Q.L.J. 281) does not question
the propriety of the course taken by Harding J. in E. v. Shaw
(1885, 7 Q.L.J. (N.C.) Ill), and the latter case only shows the
manner in which Harding J. intended to exercise his discretion.]
There is some conflict between the Queensland cases. The
only English opinion against my contention is that of Bramwell B.
in Mansell v. The Queen (1857, 27 L.J.M.C. 4), a case which
, really was decided on the meaning of the term " gone through,"
so that this Court is untrammelled, and the proper construction
of s. 33 is that when the panel has been gone through the second
time, the Crown must show cause.
Kingsbury, for the Crown : This Court has no power to quash
the conviction on a Crown case reserved. Errors in practice and
procedure are not remedied in the same way as errors of law,
and if the practice in this case was wrong, there has been a
mis-trial which can only come up to the Court on a writ of error.
Mew's Criminal Digest, c. 830 ; R. v. Stvbhs (1855, Dear. C.C. 555 ;
7 Cox C.C. 48), Gray v. The Queen (1844, 6 St. Trials (N.S.) 117),
Levinger v. The Queen (1870, L.R. 3 P.C. 282), E. v. Short (1898,
19 N.S.W.L.R. (L.) 385), Blackstone's Commentaries, Book IV.,
p. 347 (Ed. 1769). However, no error occurred, and the proper
practice was followed. E. v. Freeman (1895, 6 Q.L.J. 281), E.
V. Warden (1898, 9 Q.L.J. 49), Mansell v. The Queen (1857, 27
L.J.M.C. 4), R. V. Shaw (1885, 7 Q.L.J. (N.C.) Ill), only shows
the manner in which Harding J. intended to exercise his discretion,
and does not establish a contrary practice.
694 QUEENSLAND JUSTICE OP THE PEACE.
Ebx v. Johnstohe Coopee C.J. : The prisoner in this case was tried before Real J.
Cooper C.J. at the Circuit Court at Maryborough. When the jury panel
had been called through a second time, and the prisoner's
challenges were exhausted, a jury had not been obtained, and the
names of the jurors not empanelled were then called a third time.
When the first name was called, the juryman was asked to stand
aside by the Crown Prosecutor, and counsel for the prisoner
thereupon objected, and asked that the juryman might not be
ordered to stand aside, on the ground that, as his name was
then called for the third time, the Crown Prosecutor must show
cause for his challenge. The learned Judge decided that, in
accordance with the practice of the Court, the Crown could stand
the juror aside without showing cause if there were amongst the
jurors to be called a sufficient number to form a jury, omitting the
name of that juror. He was ordered to stand aside, another
name was called, and a fuU panel was formed, but the learned
Judge stated a case reserving the following questions for the
decision of this Court : —
1. Did allowing the Crown to stand aside the juryman
Ritchie and other jurors under like circumstances
invalidate the trial and conviction ?
2. Has the Crown a right to so stand aside under such
circumstances ?
3. Is it a power exercisable only by permission of the
presiding Judge, and is it in his discretion to permit or
refuse to allow such a standing aside without good cause
shown ?
Since the signing of Magna Charta there has never been any
doubt about the right of a prisoner to be tried by a jury selected
in a proper way. The Crown has always had the right to object
to those jurymen who were thought to be not indifferent for the
King. The Crown always had that right of objection, but very
early in the history of trial by jury some abuse must have crept
in, for about a hundred years later we find further legislation on
the subject. The abuse was of the following nature :— The
Crown had objected to so many jurymen as being " not indifierent
for the King," that, in some cases, it was impossible to hold the
trial at the sittings appointed for it, and, consequently, it had
to go over to the next sittings, to the great inconvenience and
oppression of the prisoner. And therefore, in the reign of
Edward I., a statute was passed to the effect that an inquest
should not remain untaken for the cause assigned that the jurors,
CRIMINAL REPORTS, 1860-1907. 595
or some of them, wer'e not indifferent for the King, but that the ^^'^ "• Johnstone
Crown must assign for their challenge a cause certain. That Cooper C.J.
enactment received a construction soon after it was passed,
and has ever since been taken to mean that the Crown is not
bound to show cause of challenge at once, but must be called
upon to show cause only in such cases as require it, in order to
prevent the inconvenience and injustice of the inquest remaining
imtaken. The provisions of the statute of Edward I. (4 Stat.,
.33 Edw. I.) were re-enacted by 6 Geo. IV., c. 40, s. 29, and now
are embodied in s. 33 of The Jury Act of 1867, which is as follows :
" In aU inquests to be taken before any Court wherein the Queen
is a party howsoever it be notwithstanding it be alleged by them
that sue for the Queen that the jurors of those inquests or some
of them be not indifferent for the Queen yet such inquests shall
not remain untaken for that cause but if they that sue for the
Queen will challenge any of those jurors they shall assign of their
■challenge a cause certain and the truth of the same challenge shall
be inquired of according to the custom of the Court and it shall be
proceeded to the taking of the same inquisitions as it shall be
found if the challenges be true or not after the discretion of the
€ourt."
That enactment has always been interpreted to mean that the
•Crown has still the right to order any jurymen to stand by,
pending the selection of an indifferent panel.
The whole object of trial by jury is that twelve men may be
obtained from those who have been called together to act as
jurors to decide upon questions of fact ; twelve indifferent men
free from bias or prejudice. In order to secure this result the
prisoner is allowed at least twelve peremptory challenges.
The Crown has no such right, and can exercise no peremptory
challenge, but the Crown may stand any juryman aside as not
being indifferent. If, however, as the result of the Crown so
standing jurors aside the inquest may not be taken, then the
•Crown must show cause of challenge.
The names of the jurors summoned are put into a box, and
are taken out therefrom by chance. As the names are called,
-the prisoner may challenge any number he wishes, and the
■Crown Prosecutor may order any of those called to stand aside.
It might happen that a jury is obtained on the first calling of the
names. Very frequently, however, this is not done, and in
that case the names are called over again in the same order as
-they were originally drawn from the box, and the prisoner is
596 QUEENSLAND JUSTICE OF THE PEACE.
Hex w, Johnstone ^j^g^ confined to his proper number of peremptory challenges,
Cooper C.J. which is never less than twelve ; and the Crown has still the
right to stand aside those jurors not indifferent on the matter.
If, on the second caUing of the jurors, twelve jurymen are not
empanelled, the names of the jurors are again called in the same
order, and then it can be seen whether a jury can be formed or
not. The trial must take place at that session, and the jury
must be formed ; and if it is seen that a jury cannot be got
together in consequence of the objections by the Crown
Prosecutor, he must eventually be called upon to show cause
for his challenges.
In this case it was contended by counsel for the prisoner that
on the third caUing of the jurors' names, the Crown Prosecutor
was bound to show cause for his challenges. I do not think that
is the law. The practice has been thus stated in Mansell v. The
Queen (1857, Dears. & B. 375 ; 8 El. & B. 54 ; 27 L.J. M.C. 4),
by Bramwell B., one of the ablest Common Law Judges
who ever sat on the Bench — " I am rather inclined to
agree with Mr. Russell that the statute of Edward I. meant
that the Crown should not challenge except for cause, but a
practice has grown up for the Crown to set a juryman aside
without showing cause until the panel has been gone through ;
and I think a violation of this practice is not ground for error,
but for an application to the discretion of the Court. The statute
having passed so many years ago, that delay of showing cause,
which was only discretionary at first, has become a right ; and
I think that a Judge would do -wrong who did not admit it as a
matter of right. I think that though the panel has been once
gone through, the Judge has the power still to continue to
postpone the time when he will compel the Crown to assign
cause for its challenges, as I think that the application that a
juryman shall stand by is an application to the discretion of the
Judge at the trial ; but I think the Judge ought not so to continue
to postpone the obligation on the Crown to show cause without
good reason for doing so. . . . It is admitted that the Crown
need not show cause until the panel is through ; and the only
sensible limit is " — and this is important — " that the Crown
need not show cause until it appears that the inquest will
otherwise go off for default of jurors."
I entirely agree with that view, and adopt it as a correct state-
ment of the law. It has been followed in Queensland by Griffith
C.J. in the case of Reg. v. Freeman (1895, 6 Q.L.J. 281), and I think
OEIMINAL REPORTS, 1860-1907. 597
the decision ought to be followed by this Court. The application Rex ii. Johnstone
by the Crown Prosecutor to the Judge to order a juryman to stand Cooper C.J.
aside is an application to the discretion of the Court, and it is not
material whether this application is made on the second or on the
third calling of the jurors' names. I think that after the second
call, if the prisoner has exhausted all his challenges, it might
be reasonable for his counsel to ask the Judge to call upon the
Crown Prosecutor to show cause when the next call was being
made, and it would be reasonable for the Judge, under some
circumstances, to accede to the request, although I do not for
a moment think that it would be his duty to do so in every case,
for it is a matter entirely in his discretion, and he should be
guided by all the circumstances of the particular case. I believe
that I cnce interfered in a case where the circumstances warranted
it; but generally I have not done so. I therefore think the
questions should be answered as follows : — (i.) No ; (ii.) and
(iii.) the Crown has no absolute right to stand a juryman aside,
but it is a matter which depends entirely upon the discretion of
the Judge.
I may add that in future I shall adhere to my practice of
allowing the Crown to fu% exercise the right of standing jurymen
aside. The prisoner is, I think, sufficiently protected by the
twelve or more peremptory challenges given to him by law.
It may often happen that the names are drawn from the box in
such an order that those persons first called are not of the highest
character or inteUigence amongst the jurors summoned, and if the
Crown Prosecutor is called upon to show cause for his challenges
immediately on the third call of the names, the most suitable
jury may not be secured ; but, of course, I shall be guided by
the particular circumstances of each case when any question
arises as to a prisoner's right to force the Crown to challenge for
cause.
Real J. : I am also of opinion that the conviction must be Real J.
affirmed. I am pleased that Mr. Power insisted on the point,
as it has enabled the matter to be fully argued, and the principles
on which the Court acts, considered. I think the passage read
by the learned Chief Justice from Baron Bramwell's judgment in
Mansell v. The Queen (1857, Dear. & Bell 375) is directly in point.
That learned Judge points out that the practice of allowing the
Crown to continue to postpone the obligation to show cause for its
challenges, even though the panel had been gone through, has
598 QUEENSLAND JUSTICE OF THE PEACE.
Bex v. Johnstonr been so long continued that any attempt to alter it would now
Beal J. amount almost to a denial of an established right, but, at the same
time, the learned Judge also points out that the Statute 33
Edw. I., which governs these matters, was probably intended
to mean that the Crown should not challenge except for cause,
and so this practice, in its inception, was really an evasion of the
statute.
The statute was passed in 1305 to prevent a scandal which had
crept into the administration of justice — viz., that, although
juries were summoned, trials were not held at the sessions of the
Court for which they were set down owing to the practically
unUmited right of peremptory challenge which was exercised
by the Crown as a prerogative. Whether that power of challenging
was illegal or not, the Legislature recognised the abuse which
was caused, and provision was made against it by 33 Edw. L,
Stat. 4, which has been adopted in Queensland by s. 33 of The
Jury Act of 1867, and which provides (His Honour referred to the
section, which is set out on p. 595).
It seems to me that the words of that section are plain, and were
intended to enact that the Crown should not have a right to
challenge in any case without showing cause of challenge.
However, a practice soon grew up that the Crown had not to
show cause for its challenges unless the jury panel had been gone
through, and it appeared that the trial could not be held. As
Cockburn C.J. says :".... On the statute became
engrafted the practice of allowing the challenge, and directing the
person challenged to be put on one side till the panel should be
gone through, and if there were sufficient without him, then it
became unnecessary to show cause " Thus arose the
power of " standing by " or " standing aside " a juror, and this
power was practically a challenge by the Crown and a postponing
of the inquiry whether the person challenged was competent to
try the issue. Such was the practice that had been established
in reference to the Act of Edw. I., when its provision became
the law in Queensland by the enactment of The Jury Act of 1867.
The mode of empanelling a jury is prescribed by The Jury Act
of 1867. The Sheriff furnishes the names of the jurors written on
separate cards to the proper officer of the Court. These are, in
open court, placed in a box (s. 21), and the proper officer " shall,
in open court, draw out of the said box four or twelve (as the
case may be) of the said cards one after another, and if any of
the men whose names shall be so drawn shall not appear or shall
CKIMINAL REPOETS, 1860-1907. 599
he challenged, then such further number until the number of Kex v. Johnbionj!
jurors ... to be sworn be drawn who shall appear and EmTj.
after all just causes of challenge allowed shall remain as fair and
indifferent and the four or twelve men (as the case may be)
so first drawia and appearing and approved as indifferent shall
be the jury to try the said issue. . . ." In point of fact,
the provisions of that section have never been absolutely followed
by the Court, for the Court has always allowed, on the first caUing
of the jury panel, both the Crown and the prisoner to stand
aside any juror ; that is to say, it has always allowed both the
peremptory challenges of the prisoner, and the challenges for cause
of the Crown to be deferred until the names have been once called.
If a jury is not obtained on the first calling, the names are called
a second time. The cards are kept in the same order as they
were drawn from the box, and consequently on the second calling
the names appear in the same rotation. On this calling,
challenges may be exercised by the prisoner, and he may challenge
peremptory or for cause. The challenge for cause may indeed
be made at any time, and the validity of the cause is at once
tried. The Crown Prosecutor is again allowed to order any
juryman to stand by. After the panel had been gone through,
the names of those challenged peremptorily or against whom good
cause was shown, are set apart from the others, and are not called
again, but the order of the remaining names is still otherwise
preserved, and, if necessary, these names are then called for the
third time. On this call the Crown may still apply to have the
time for showing cause of its challenges postponed, and the
question whether the time has arrived when the Crown should
show cause is one for the discretion of the Judge. The Crown
may be compelled to do so at any time on the third calUng,
and must be compelled so soon as it appears that the trial will
not be held unless this is done.
The practice of different Judges has been different as to the
time at which they will require the Crown to show cause, and
naturally must be different, for it is merely a matter of discretion ;
but generally, I think, this has not been done until it appears
that a jury cannot be formed without recourse to the persons
who have been stood aside. I have followed that practice in the
past. But the discussion in this case has shown me that by
allowing the Crown to stand jurymen aside on the third call of the
panel, it may often happen that a jury would be selected in an order
other than that in which the names were drawn from the box.
600
QUEENSLAND JUSTICE OF THE PEACE.
Bex v. Johnstone f qj. after the names have been called the first time everybody
BealJ. knows the order in which they will be subsequently called. That
information, of course, is an advantage to the prisoner when he
comes to challenge peremptorily, but when the panel has been,
exhausted the second time, it ceases to be an advantage to him,
for the Crown, having power to stand jurors by on the other
calls, and to wait until the peremptory challenges of the prisoner
have been exercised, would, if allowed the right of standing by
on the third caUing, be enabled to select any jurors it desired
from those remaining. I do not think the Act was ever intended
to permit that, and in future I shall, in exercising my discretion
in these matters, give effect to what I think is the real meaning
of the Act, and limit the right of the Crown to stand jurors by
to the time when the panel is gone through a second time, and
after that shall require the Crown to show cause. It may be
necessary to vary this rule in exceptional circumstances, as, for
instance, when several persons are jointly indicted, and all exercise
their separate rights of challenge, or where any jurors are out
of court considering a verdict in another case ; but in general
I shall adopt the course I have indicated. I therefore agree that
the questions reserved should be answered as the Chief Justice
has indicated.
Power J. PowEB J. : I have nothing to add to the judgments which
have been dehvered, and think, for the reasons stated, that' the
questions should be answered as indicated, by the Chief Justice.
Solicitor for the prisoner : E. E. Quintan.
Solicitor for the Crown : The Crown Solicitor.
1907.
27th February.
Power J.
[In Chambers.]
R. V. FORREST.
[1907 Q.W.N. 22.— Note.— See R. v. Ryan and Sue, (1 Q.J.P.R. 165).
(1907 q.W.N. 61).]
Criminal law — Venue, change of — Application to rescind order.
Percy David Forrest was committed for trial at the sittings
of the Supreme Court to be held at Rockhampton on 4th March,
1907, by the PoHce Magistrate at Longreach on two charges made
CRIMINAL REPORTS, 1860-1907.
601
Tinder s. 240 of The Criminal Code Act. On 13th February, 1907, ^- "• Fob^st.
an ex parte application on behalf of the prisoner was made to
Power J. in Chambers for change of venue to the District Court
to be held at Longreaoh on 6th April, 1907. Affidavits were
read to the effect that it would be necessary for the prisoner to
bring five witnesses from Longreach to Rockhampton for the
purpose of his defence, and also that his medical adviser was of
opinion that in the then condition of his health it would be
detrimental for him to travel from Longreach to Rockhampton,
and Power J. ordered the venue to be changed to the District
Court at Longreach.
On Summons —
Tyler, on behalf of the Crown, applied to rescind the order of
Power J., made on 13th February, on the ground that notice of the
AppUcation was not given to the Crown, and referred to 0.
XXXIL, r. 13, O. XLV., r. 1, and O. LXII., r. 28, of the Supreme
Court Rules, and 0. I., r. 1, of the Criminal Practice Rules.
Lilley, for the prisoner : The fact that the order was made
■ex parte is not sufficient ground for rescinding it. He referred to
s. 557, subsec. 1, of The Criminal Code, R. v. Arrowsmith (1903,
Q.W.N. 31).
Power J. : I refuse to rescind the order, and dismiss the Power J.
summons with costs. .
Solicitors : D. P. Carey ; Tyler, for the Crown Solicitor.
[Full Court.]
R. V. KEARLEY.
[190^ Q.W.N. 50.— Note.— Section ol Code omitted In headnote, is s. 224.]
Criminal law — Jury — Challenge— Withdrawal of peremptory
challenges — Calling of jury panel de novo— Indictment for
procuring abortion — Sufficiency of — The Criminal Code, s.
—The Jury Act of 1867 (31 Vic, No. 34), s. 34.
Crown Case Reserved.
The prisoner was tried before Cooper C.J. at the August Criminal
Sittings. The first count of the indictment charged that the
1907.
5th September.
Cooper C.J.
Real J.
Chubb J.
Noel A.J.
602 QUEENSLAND JUSTICE OF THE PEACE.
E. vl Keaelet. prisoner, at a certain time and place, " unlawfully used force to
one EUen Maud Caine with intent thereby then to procure her
miscarriage." The second count alleged that the prisoner, at
the same time and place, " unlawfully used an instrument t»
or upon the said Ellen M. Caine " with a like intent.
The prisoner was defended by counsel, who objected to the
information as not disclosing the sort of force used or the nature
of the instrument, and contended that the offence was not set
out with sufficient particularity. The objection was overruled,^
and the prisoner then pleaded.
The Crown and prisoner freely exercised the right of objecting
to jurymen, and after the names had been called a second time,,
and the prisoner had challenged twelve names, a full panel had
not been formed. The learned Judge then told counsel for th&
Crown that the names of the jurymen would be called again for the
last time, and that if the number of names should be so reduced
by the prisoner's challenges and the objections of the Crown
that there would be a risk of the number being insufficient to
provide a jury, the Crown would be required to show cause for
objection.
Thte names were then called in the same order as before, and
again the prisoner peremptorily challenged twelve jurors. Most
of these were names which had been challenged before, but two
or three of them had not been previously challenged. In some
instances the Crown and prisoner simultaneously objected to the
same name, and in those cases the learned Judge gave the prisoner
the benefit of the objection.
After the prisoner's peremptory challenges had been exhausted,
her counsel formally objected to the name of any juryman being
called whom he had challenged on the previous round. The
learned Judge pointed out to him that if that were a sound
objection, he could challenge twelve fresh names, and thus
have^ the advantage of twenty-four peremptory challenges, and
refused to entertain it.
The name of Williams was then called, and the prisoner's
counsel objected to his being called, as he was one of those who
had been previously challenged. The objection was overruled,
and the Crown Prosecutor stood hiin aside. Thomson was then
called, and to him the same objection was raised, but it was
overruled, and he was sworn. The same thing happened' in
the case of two other jurymen, McLennan and Sabine. The
prisoner was found guilty on the second count.
CEIMINAL REPOKTS, 1860-1907.
603
On the appHcation of counsel for the prisoner the following i^-
pomts were reserved for the opinion of the Full Court :— (1)
Was the information bad, inasmuch as it did not set out the offence
with sufficient particularity ? (2) Was the learned Judge right
in allowing to be called on the third round the juryman already
challenged by prisoner during the second round, and were the
jurymen Thomson, McLennan, and Sabine legally sworn as
jurors, they having been peremptorily challenged by prisoner
on the second round.
Lukin, for the prisoner : The prisoner's peremptory challenges
were exhausted on the second call ; they were beyond recall, and
he had no right of peremptory challenge on the third calHng.
His additional challenges were void. The Jury 4c« o/ 1867, s. 34.
Therefore none of the jurymen he had challenged for the second
call were competent to sit on the jury.
The Full Court (Cooper C.J., Real, and Chubb JJ., and Noel
A.J.) held that at the least the second count of the information —
on which the prisoner was convicted — ^was sufficient ; and also
held that the action of counsel for the prisoner in challenging
peremptorily on the third caUing of the jury panel amounted to a
withdrawal of his previous challenges, for it was done with full
knowledge that aU peremptory challenges had been made ; that
such withdrawal was a concession by the learned Judge, which
could only operate in favour of the prisoner, and was a matter
within his discretion, and that therefore the jury were regularly
empanelled.
. Eeablet.
Cooper C.J.
Beal J.
Chubb J.
Noel A.J.
Solicitor : W. J. McOrath.
604 INDEX.
SUBJECT INDEX.
ADDRESS BY ACCUSED— page
B. V. wash and Bunting, 1902 St. E. Qd. 6 . . . . . . . . 400
Reply by Attorney-General, etc. {R. v. Hennessy, I S.C.R. 147) . . . . 27
Stating facts (Jf. V. PTAifefejMse, 11 Q.L. J. N.C. 33) .. .. ..396
ADDRESSES—
To Court and jury, order of (-R. v. Kennedy and Royston, 1 Q.L.J. 12) . . 123
ADJOURNMENT OF TRIAL—
Grounds {R. v. Grimes, 7 Q.L.J. N.C. 109) . . . . . . . . 336
(R. V. Kenniff (2), 1902, Q.W.N. 76) . . . . . . 432
ADMISSION BY PRISONER—
By prisoner {R. v. Tim Crotun, 6 Q.L.J. 283) . . . . . . . . 303
ADVERTISEMENT—
Reward for stolen property (Slvanioich v. Mills, 3 Q.L.J. 12) . . . . 191
AFFIDAVIT TO SUPPLEMENT DEPOSITIONS—
Cfoldsmith v. Roche, 2 S.C.R. 55 . . . . . . . . . . 52
AGE—
Evidence of, defilement of girl under 10 (R. v. Camm, 1 Q.L.J. 136).,, . . 1^8
{R. V. HinMey, 2 Q.L.J. 182) . . 189
AMENDMENT OF—
Conviction (BUby v. Hariky, 4 Q.L.J. 137)
47)
219
581
203
327
323
{McNamara v. Jenkins, 1906, Q.W.N.
Indictment (R. v. Knack, 3 Q.L.J. 101)
{R. V. Chambers, 7 Q.L.J. 64)
Sentence (R. v. Wisher, 7 Q.L.J. 52) . .
APPEAL—
Affidavit of juror (R. v. Pearson, 2 S.C.R. 21) . . . . . . . . 39
Fact, practice {R. v. Hopkins and Eaton, 2 Q.L.J. 47) . . . . . . 162
ARMS—
Loaded {R. v. Tracey, 6 Q.L.J. 272) . . . . . . . . . . 299
ARREST—
Commencement of prosecution {B. v. Jack, 6 Q.L.J. 60) . . . . . . 256
ARSON—
Tent {R. v. Hamilton, 3 Q.L.J. 78) . . . . . . . . . . 195
ASSAULT—
Indecent, evidence of non-consent (R. v. Hoskings, 4 S.C.R. 24) . . . . 83
Long V. Baldins, 4 S.C.R. 86 . . . . . . . . . . . . 87
Schoolmaster (Smith v. O'Byrne, 5 Q.L.J. 126) . . . . . . . . 252
ATTEMPT—
R. V. Moody, 8 Q.L.J. 102 . . . . . . . . . . . . 344
AUDI ALTERAM—
In re Pedro, 5 Q.L.J. 22 . . . . . . . . . . . . 241
AUTREFOIS CONVICT—
Plea of (R. V. Hull (2), 1902, St. R. Qd. 53) . . . . . . . . 403
BAIL—
R. V. James, 7 Q.L.J. 148 . . . . . . . . . . . . 329
R. V. Malone, 1903 St. R. Qd. 140 . . .. .. .. .. 461
R. V. Voss, 7 Q.L.J. N.C. 74 . . . . . . . . . . . . 334
SUBJECT INDEX.
605
BAILMENT—
Stealing (R. v. Levy, 2 S.C.R. 166)
BENCH WARRANT—
Prisoner committed, unable to attend {H. v. Rohinson, 6 Q.L.J. 184)
BETTING-HOUSE—
Aird V. S&elton, 1903 St. R. Qd. 258 . .
R. V. Lannon, 1903 St. R. Qd. 315
BIGAMY—
-8. V. Barton, 1 Q.L.J. Supp. 16
R. V. Whitehouse, 9 Q.L.J. 325
BONA FIDE CLAIM OF RIGHT—
Black V. Turner, 6 Q.L.J. 153
Rawlings v. Holy and Another, 4 Q.L.J. 160
BRANDING—
Curran v. Dowzer, 2 Q.L.J. 45
R. v. KeUy, 3 S.C.R. 199
Vickers r. Sdlheim, 1 Q.L.J. 131
CARNAL KNOWLEDGE—
Girl under fourteen, corroborative evidence (R. v. Roys, 9 Q.L.J. 47)
(R. V. ^65o«, 9 Q.L.J. 92)
CATTLE—
Suspected to bave been stolen, possession of skin (McNamiara v. Jenkins,
1906, Q.W.N. 47)
Unlawfully using (Cunningham v. McFarlane, I Q.L.J. 49)
CATTLE STEALING—
BaU V. Humphreys, Etc., 1903, St. R. Qd. 250 . .
CrudgingUm v. Cooney, Ex parte Cooney, 1902, St. R. Qd. 176
Goldsmith v. Roche, 2 S.C.R. 55
Indictment, count (R. v. Richert, 7 Q.L.J. N.C. 107)
MoUoy V. HaUam, 1903, St. R. Qd. 282
.B. V. Lang and Murphy, 9 Q.L.J. 48 . .
Unlawfully using (MiUis v. Kiefer, 10 Q.L.J. 142)
{Emmerson v. Clarke, 3 S.C.R. 76)
(/re re Haughton, 5 S.C.R. 53)
CHALLENGES BY—
Crown (R. v. SAow, 7 Q.L.J. N.C. 111). .
Defended prisoners {R. t. Murphy, 1905, Q.W.N. 52)
CHALLENGE—
By Crown (R. v. Freeman, 6 Q.L.J. 281)
(R. V. JTordeZZ, 9 Q.L.J. 49) . .
Time for (R. v. Hart, 9 Q.L.J. N.C. 46) . .
(iJ. V. Freeman, 6 Q.L.J. 281)
CLERK OR SERVANT—
Stealing (R. v. Houston, 6 Q.L.J. 145) . .
COMMENCEMENT OF PROSECUTION—
Defilement of girl under 12 (R. v. Jack, 6 Q.L.J. 60)
COMMITAL OF DEBTOR AFTER EXAMINATION—
In re Long, 4 S.C.R. 120
CONCERT—
Acting in (R. v. Kenniff, 1903, St. R. Qd. 17) . .
(R. V. Macdonald, 1904, St. R. Qd. 151)
CONFESSION—
Inducement {McNamara v. Edwards, 1907, St. R. Qd. 9)
R. V. Archibald, 2 S.C.R. 47
J?. V. Mangin, 6 Q.L.J. 63 . .
R. V. Many Many, Q.L.J. 224
R, V. rim t>o?«re, 6 Q.L.J. 283
PAGB
56
2S5
476
486
141
366
283
234
160
78
136
351
354
581
129
467
414
52
335
478
352
376
71
110
337
549
300
353
370
300
269
256
91
434
505
585
44
26i
296
303
606
SUBJECT INDEX.
CONSPIRACY—
To defeat justice— (iJ. v. Cfriffiths and Others, I904,St. R. Qd. 143) . .
To defraud— (ie. v. Hart, 9 Q.L.J. 95) . .
CONVICTION FOR TWO OFFENCES—
S. V. McGee, 6 Q.L.J. 151 . .
CORPUS DELICTI—
S. V. Kenniff, 1903, St. R. Qd. 17
B. V. Syan, 1906, St. R. Qd. 15
CORROBORATIVE EVIDENCE—
S. V. Abbott, 9 Q.L.J. 92 . .
R. V. McGee, 6 Q.L.J. 151 . .
B. V. Roys, 9 Q.L.J. 47
COSTS—
Defamation, prosecution {B. v. Edwards, 7 Q.L.J. 25)
(R. V. Tidbury, 8 Q.L.J. N.C. Ill)
COSTS AGAINST CROWW-
Britcher v. WUliams, 5 Q.L.J. 39
Jlfoifoy v. iToZtem, 1903, St. R. Qd. 282. .
CRIMINAL—
Proceeding {B. v. White, Ex parte Sidney, 1 S.C.R. 9)
Responsibility, intoxication (B. v. CorbeU, 1903, St. R. Qd. 246) . .
CROWN—
Not bound by statute unless specially mentioned {B. v. Murphy and Hobart,
8 Q.L.J. 63)
CROWN CASE RESERVED—
At instance of Judge {B. v. Wisher, 7 Q.L.J. 52) . .
By Judge, committal for sentence (R. v. Moody, 8 Q.L.J. 102)
General verdict {B. v. Duncan, 4 Q.L.J. 219)
Sentence (B. v. Houston, 6 Q.L.J. 145)
Time for reservation of point {B. v. Duncan, 4 Q.L.J. 219)
B. V. Gri/fin (2), 1 S.C.R. 182
B. V. Jacobs, 1904, Q.W.N. 22
B. V. Moody, 8 Q.L.J. 102 . .
B. V. Wdls, 5 S.C.R. 181 . .
CROWN PROSECUTOR
Informality in commission {B. v. Collins, 1 S.C.R. 112)
DEFAMATION—
Costs (,B. V. Edwards, 7 Q.L.J. 25)
(B. V. HamiU, 1904, Q.W.N. 76)
B. V. Murphy and Hobart, 8 Q.L.J. 63 . .
DISCHARGE OF JURY—
B. V. Longland, 7 Q.L.J. 56 . .
DISCRETION OF JUSTICES—
Aird V. SMton, 1903 St. R. Qd. 258 . .
DWELLING-HOUSE—
Tent (iJ. V. Hamilton, 3 Q.L.J. 78)
(B. V. Dixon, 2 Q.L.J. 81)
DYING DECLARATION—
Proof of (-B. V. Body Hogan, 3 Q.L.J. 143)
(R. V. Cor6e«, 1903, St. R. Qd; 246)
(B. V. Warton, 1905 St. R. Qd. 167)
B. V. Freeman, 6 Q.L.J. 281 . .
-B. V. Kuruwaru, 10 Q.L.J. 139
ESCAPE—
Service of balance of sentence (In re Court, 2 S.C.R. 171)
PAGE
502
357
279
434r
55a
354
279
351
310
349
249
478
8
463
342
323
344
239
269
239
35
538
344
112
24
310
495
342
325
476>
195
174
207
463
540
300^
372
CO
SUBJECT INDEX. 607
EVIDENCE— PAQB
Admissibility of averments by prisoner {S. v. Street, 3 Q.L.J. 88) . . . . 196
Admission by prisoner {R. v. Tim Crolvn, 6 Q.L.J. 283) . . . . . . 303
As to age of girl (R. v. Gamm, I Q.L.J. 136) . . . . . . . . 138
By prisoner on behalf of fellow prisoner (Jong Song v. Joy Hoy, 8 Q.L.J. 109) 348
Confession, admissibility {R. v. Many Many, 6 Q.L.J. 224) . . . . 296
\R. v. Tim Grofvn, 6 Q.L.J. 283) . . . . 303
Confession, voluntary, no inducement (R. v. Archihald,, 2 S.C.R. 47) . . 44
{McNamara v. Edwards, 1907, St. R.
Qd. 9) . . . . . . 585
Corroborative (R. v. McGee, 6 Q.L.J. 151) . . . . . . . . 279
Carnal knowledge (is. V. iJoj^s, 9 Q.L.J. 47).. .. .. ..351
(R. V. Ahhott, 9 Q.L.J. 92) . . . . . . 354
Deposition of absent witness fcffi. v. Penn. 2 S.C.R. 177) . . . . . . 62
Bying declaration (R. v. Freeman, 6 Q.L.J. 281) . . . . . . 300
Proof of {R. V. Rody Hogan, 3 Q.L.J. 143) . . . . . . . . 207
(R. V. Warton, 1905, St. R. Qd. 167) . . . . 540
(R. V. Corhett, 1903 St. R. Qd. 246) . . . . . . 463
{R. V. Kuruwaru, 10 Q.L.J. 139).. .. .. ..372
{R. V. Rody Hogan, 3 Q.L.J. 143) . . . . . . . . 207
{R. V. Freeman, 6 Q.L.J. 281) . . . . . . . . 300
False pretences {R. v. Whitehouse, 11 Q.L.J. 141) .. .. ..392
{R. V. Hutt, 1902, St. R. Qd. 1) . . . . . . 396
Haudwiiting {R. v. Beckmann, 11 Q.L.J. 1) . . . . . . . . 381
Husband and wife (R. v. Fuzil Deen, 6 Q.L.J. 302) . . . . . . 307
Letter of advice, re P.O. money order (R. v. Firday, 7 Q.L.J. 65) . . . . 328
Map (Black v. Turner, 6 Q.L.J. 153) . . . . . . . . . . 283
Motive, res gestae, other felonies (R. v. QriHin (1), 1 S.C.R. 176) . . . . 29
Not objected to (Britcher v. Williams, 5 Q.L.J. 39) . . . . . . 249
Of incorporation of company (R. v. Galdey, 7 Q.L.J. 45) . . . . . . 314
(R. V. WUtehoiise, 6 Q.L.J. 313) . . . . 308
(R. V. GonneU, 6 Q.L.J. 209) . . . . 286
Opinion of expert as to banking transaction (R. v. Hart, 9 Q.L.J. 95) . . 357
Person ignorant of nature of oath (R. v. Hopkins, 2 Q.L.J. 47) . . . . 162
Proof as to clerk (R. v. Street, 3 Q.L.J. 88) . . . . . . . . 196
Rejection, remoteness (R. v. Street,, 3 Q.L.J. 88) . . . . . . 196
Res irUer alios (R. v. Firday, 7 Q.L.J. 65) . . . . . . . . 328
Right of prisoner to cross-examine witness for Crown (R. v. Hume, 11 Q.L.J.
N.C. 31) . . . . . . 395
Statements of insolvent at examination (R. v. King, 1 Q.L.R. Pt. I. 73) . . 95
Subsequent conduct of prisoner, incest (R. v. Goldsfworthy, 4 S.C.R. 144) . . 334
EXPLOSIVES—
Destroying property by (R. v. Fitzgerald, 1903 Q.W.N. 75) . . . . 494
EXTRADITION—
In re Garuchet, 9 Q.L.J. 122 . . . . . . . . . . . . 359
In re Pedro, 5 Q.L.J. 22 . . . . . . . . . . . . 241
R. V. Hustin, 1 Q.L.J. 16 . . . . . . . . . . . . 124
R. V. Lgwis, Ex -parte Ghahcd, 1902 St. R. Qd. 99 . . . . . . 409
R. V. Macdonald, Ex parte StruU, 11 Q.L.J. 85 . . . . . . . . 386
R. V. Murray, Ex parte Oliver, 9 Q.L.J. N.C. 82 . . . . . . 370
FALSE NAME—
Indicted by (i?. V. ^omiZtora, 9 Q.L.J. 251) .. .. ..362
FALSE PRETENCES—
Evidence, admissibility (R. v. Whitehouse, 11 Q.L.J. 141) . . . . 392
Evidence of intent, prior scheme (iS. V. i^wK, 1902, St. R. Qd. 1) .. .. 396
R. V. Bennett, 1 S.C.R. 109 . . . . . . . . . . . . 23
FINDING OF JUSTICES—
Review of (Smith v. G' Byrne., 5 Q.L.J. 126) . . . . . . . . 252
FIRST OFFENDER—
Injury to person, compensation (R. v. Alberg, 7 Q.L.J. N.C. 112) . . . . 337
FORGERY—
Evidence, admissibility (R. v. Firday, 7 Q.L.J. 65) . . . . . . 328
608
SUBJECT INDEX.
FUGITIVE OFFENDERS—
R. V. McMurdo and Dailies, 2 Q.L.J. 10
S. V. Friday, Ex parte Friday, 1 1 Q.L.J. 26
GAMING-HOUSE—
Keeping common (Sheehan v. Gallagher, 1902, St. R. Qd. 319)
GENERAL DEFICIENCY—
R. V. Houston, 6 Q.L.J. 145
B. V. Boyle, 6 Q.L.J. 146 . .
GENERAL VERDICT—
R. V. WUhie, 2 S.C.R. 33
HUSBAND AND WIFE—
Evidence by {R. v. FuzU Been, 6 Q.L.J. 302)
INCEST—
Evidence of subsequent acts (E. v. Goldsworthy, 7 Q.L.J. N.C. 42) . .
INDECENT ASSAULT—
Evidence of non-consent {R. v. HosJcings, 4 S.C.R. 24)
Reasonable belief as to age {R. v. Schloss and Maguire, 8 Q.L.J. 21). .
INDICTMENT-
Allegation as to ownership {R. v. Fitzgerald, 1903, Q.W.N. 75)
Amendment, (i?. v. Knack, 3 Q.L.J. 101 )
{R. V. Chambers, 7 Q.L.J. 64)
Description of murdered person (R. v. Judge, 2 Q.L.J. 61)
{R. V. Knack, 3 Q.L.J. 101)
Description of ofEence (R. v. A!i Sam, 2 Q.L.J. 144)
Joinder of several felonies, two prisoners {R. v. Castles and Griffiths, 2 S.C.R. 147)
Joining counts for felony and misdemeanour {R. v. Attwood, 1 S.C.R. 146) . .
Sufficiency of {R. v. Kearley, 1907, Q.W.N. 50) . .
Time for objection, commission of Crown Prosecutor {R. v. Collins, 1 S.C.R. 112)
INJURIES TO PROPERTY—
Snake [Dowling v. Fritz, 1 Q.L.J. 82) . .
INSANITY—
Arraignment (R. v. Kovcdky, 6 Q.L.J. 219)
(R. V. Roche, 3 Q.L.J. 139)
INSOLVENCY OFFENCES—
Admissibility of statements made at examination (R. v. King, 1 Q.L.R., Pt. I.
73 ; 4 S.C.R. 144)
Disposal of goods other than in ordinary way of trade {R. v. Fieremont,
2 Q.L.J. 93)
Liability of married woman {R. v. Johnson, 4 Q.L.J. 130) . .
INTENT—
Stealing {R. v. Glen, 9 Q.L.J. 140)
INTERPRETER—
Inability to charge accused {R. v. Willie, 7 Q.L.J. N.C. 108)
INTIMIDATION—
Bilby V. Hartley (4 Q.L.J. 137)
INTOXICATION—
R. V. Corbett, 1903, St. R. Qd. 246
R. V. Glen, 9 Q.L.J. 140 . .
JUDICIAL NOTICE—
R. V. Macdonald, Ex parte Strvtt, 11 Q.L.J. 85 . .
R. V. Vos and Others, 6 Q.L.J. 215 . .
JURISDICTION—
Offences committed out of Queensland {R. v. Barton, 1 Q.L.J. Supp. 16)
Of Justices, bona fide claim of right (See Rawlings v. Halij, 4 Q.L.J. ICO)
(Black V. Turner, 6 Q.L.J. 153)
PAGE
150
384
426
269
272
41
307
334
83
337
494
203
327
168
203
186
54
26
601
24
134
295
204
95
175
215
361
336
219
463
361
386
?88
141
234
283
SUBJECT INDEX. 609
JURISDICTION— cojihjsMerf— paoe
Justices, receiving {Henderson v. Macdonald, 4 Q.L.J. 133) . . . . 216
Of State Court (R. v. Lynch, 1904, Q.W.N. 17) . . . . . . . . 537
Pacific Islanders, Malayta (S. v. Vos and Others, 6 Q.L.J. 215) . . . . 288
Territorial (R. v. Jimmy, 4 S.C.R. 130 ; 7 Q.L.J. N.C. 106) . . . . 93
(R. V. Gomez, 5 S.C.R. 189) . . . . . . . . 119
JUROR—
Affidavit of {R. v. Pearson, 2 S.C.R. 21) . . . . . . . . 39
Atheist, competency (iJ. V. OraiTOe, 9 Q.L.J. 47) . . .. .. .. 350
Illness of (R. v. PorOey, 3 S.C.R. 202) . . . . . . . . . . 81
JURY—
Challenges (R. v. Kearley, 1907, Q.W.N. 50) . . . . . . . . 601
{R. V. Johnstone, 1907, St. R. Qd. 155) . . . . . . 591
Challenge, time for {R. v. Freeman, 6 Q.L.J. 281) . . . . . . 300
{R. V. Hart, Q.L.J. N.C. 46) . . . . . . 370
{R. V. Longland, 7 Q.L.J. 56) . . . . . . 325
By Crown {R. v. Freeman, 6 Q.L.J. 281) . . . . . . . . 300
{R. V. WardeU, 9 Q.L.J. 49) . . . . . . . . 353
Discharge of (R. v. Longland, 7 Q.L.J. 56) . . . . . . . . 325
Special {R. v. Kenniff, 1902, St. R. Qd. 239) . . . . . . . . 422
KILUNG OR MAIMING CATTLE—
R. V. Dunshot, 9 Q.L.J. 298 . . . . . . . . . . . . 365
LIMTTATION-
Defilement of girl under twelve (R. v. Jack, 6 Q.L.J. 60) . . . . . . 256
LOADED ARMS—
R. V. Tracey, 6 Q.L.J. 272 . . .. .. .. .. ..299
MAUCIOUS INJURIES TO PROPERTY—
Black V. Turner, 6 Q.L.J. 153 . . . . . . . . . . 283
DowWmgr V. J'rJiz, 1 Q.L.J. 82.. .. .. .. .. ..134
Raldings v. Holy, 4 Q.L.J. 160 . . . . . . . . . . 234
MANDAMUS—
R. V. Cfriffin (2), 1 St. R. Qd. 182 . . . . . . . . . . 35
MANSLAUGHTER—
Contributory negligence {R. v. Bunney, 6 Q.L.J. 80) . . . . . . 265
MAP—
Admissibility (Black v. Turner, 6 Q.L.J. 153) . . . . . . . . 283
MARRIED WOMAN—
liability for insolvency offences (R. v. Johnson, 4 Q.L.J. 130) . . . . 215
MEDICAL AID—
Failure to provide, murder (if. V. iWacifonaW, 1904, St. R. Qd. 151). . .. 505
MISDIRECTION—
R. V. Bennett, 10 Q.L.J. 147 . . . . . . . . . . . . 377
MURDER—
Aiding suicide (R. v. Draper, 1903, Q.W.N. 32) . . . . . . . . 492
Corpus delicti (R. v. Ryan, 1906, St. R. Qd. 15) . . . . . . . . 553
Evidence of death (R. v. Kenniff, 1903, St. R. Qd. 17) . . . . . . 434
Failure to provide necessaries for child {R. v. MacdonaM, 1904, St. R. Qd. 151) 505
MURDER OF CfflLD-
Name unknown (if. v. Ji«Z?e, 2 Q.L.J. 61) .. .. ,. .. 168
Sex not stated {R. v. Knack, 3 Q.L.J. 101) . . . . . . . . 203
NAME—
Wrong {R. V. Hamilton, 9 Q.L. J. 251) . . .. .. .. ..362
NECESSARIES^—
Failure to provide (iJ. v. il/ocdoreoZd, 1904, St. R. Qd. 151) .. .. 505
NEGLECT CAUSING DEATH—
R. V. Macdonald, 1904, St. R. Qd. 151 . , . . . . . . . . 505
610
SUBJECT INDEX.
NEW TRIALS—
In Criminal Cases — (S. v. Walsh and Bunting, 1902, St. R. Qd. 6) . .
OATH—
Ignorance of nature of {S. v. Hopkins, 2 Q.L.J. 47)
OFFENDERS' PROBATION—
B. V. Franz, 4 Q.L.J. 219
PACIFIC ISLANDERS—
Removing, etc. {E. v. Coatk, 2 S.C.R. 178)
PENAL SECTIONS—
Goldsmith v. Boche, 2 S.C.R. 55
PENALTY—
Reduction on appeal {Bilbi/ v. Hartley, 4 Q.L.J. 137)
PERJURY—
R. V. Lum Hook, 4 Q.L.J. 63 . .
Foreigner (B. v. McDermott, 1902, Q.W.N. 91) . .
PLEADING—
Awtrefois convict (B. v. Hvll (2), 1902, St. R. Qd. 53)
PRISON—
Visit to prisoner by his solicitor (R. v. Eenniff, 1902, Q.W.N. 71) . .
PRISONER—
Committed for trial and unable to attend {B. v. Rohinson, 6 Q.L.J. 184)
Interview with in prison by solicitor (In re Minnis, 1 Q.L.J. 56)
Seat on floor of Court {B. v. Wilson, 7 Q.L.J. N.C. 110 ). .
PRIVATE PROSECUTION—
B. V. Hamia, 1904, Q.W.N. 76
PROBATION—
iJ. V. 4?6erff, 7 Q.L.J. N.C. 112
PROPERTY—
Malicious injuries to (Balvlings v. Holy, 4 Q.L.J. 160)
(Black V. Turner, 6 Q.L.J. 153)
RAPE—
B. T. Bennett, 10 Q.L.J. 147
REASONABLE BELIEF AS TO AGE—
B. V. Schloss and Maguire, 8 Q.L.J. 21
RECEIVING PROPERTY KNOWING IT TO HAVE BEEN STOLEN-
Jurisdiction of Justices (Henderson v. Macdorudd, 4 Q.L.J. 133)
R. V. Patterson, 1906, Q.W.N. 32
REDUCTION OF PENALTY ON APPEAL—
BUby Y. Harttey, 4 Q.L.J. 137
REPLY BY CROWN LAW OFFICER—
B. V. Hennessey, 1 S.C.R. 147
B. V. Lewis, 1 S.C.R. 138 . .
B. V. Walsh and Bunting, 1902 St. R. Qd. 6
B. V. WUtehouse, 11 Q.L.J. N.C. 33 . .
REWARD FOR STOLEN PROPERTY—
Stoanwick v. MiUs, 3 Q.L.J. 12
ROBBERY—
B. V. Wdls, 5 S.C.R. 181
SCHOOLMASTER—
Assault (Smith v. ff Byrne, 5 Q.L.J. 126)
SENTENCE—
Place of (B. v. Spence, 7 Q.L.J. N.C. 81)
SPECIAL JURY—
B. V. Kenniff, 1902, St. R. Qd. 239 . .
rAOE
400
162
238
63
52
219
212
433
403
432
285
134
336
495
337
234
283
377
337
216
580
219
27
25
400
396
191
112
252
335
422
SUBJECT INDEX.
611
STATEMENT OF DEFENDED PRISONER READ TO JURY— page
R. V. Ross, 6 Q.L. J. 261 . . . . . . . . . . . . 298
STATEMENTS BY AND IN PRESENCE OF PRISONER—
R. V. Tim Crown, 6 Q.L.J. 283 . . . . . . . . . . 303
STEALING—
As servant (-B. v. Moran, 7 Q.L.J. N.C. 101) . . . . . . . . 335
By Clerk or Servant — Secretary of Oddfellows' Lodge {R. v. Houston, 6
Q.L.J. 145) .. .. .. .. .. .. .. 269
R. V. Royle, 6 Q.L.J. 146 . . . . . . . . . . 272
Alternative findings as to ownership {R, v. Cawley, 7 Q.L.J. 45) . . 314
By one of joint owners {R. v. Hitt, 10 Q.L.J. 60) . . . . . . . . 370
By public servant (i2. V. Dofl!u)efi!, 4 S.C.R. 171) .. .. .. ..105
(R. V. Highfidd, 5 S.C.R. 186) . . . . . . 117
By servant of Crown (R. v. WMie, 2 S.C.E.. 33) . . . . . . . . 41
IVom unregistered society (R. v. Hill, 10 Q.L.J. 50) . . . . . . 370
Intent (R. v. Glen, 9 Q.L.J. 140) . . . . . . . . . . 361
Physical act, moving or actually dealing (R. v. Leane, 1903 Q.W.N. 53) . . 492
Special property (R. v. Levy, 2 S.C.B. 166) . . . . . . . . 56
STEALING FROM COMPANY—
Evidence of incorporation (See R. v. ConneJl, 6 Q.L.J. 209) . . . . 286
R. V. Gawley, 7 Q.L.J. 45 . . . . . . . . . . . . 314
R. V. Whitehouse, 6 Q.L.J. 313 . . . . . . . . . . 308
STEAUNG FROM DWELLING HOUSE—
R. V. Dixon, 2 Q.L.J. 81 . . . . . . . . . . . . 174
STOLEN PROPERTY—
Reward for [Slvanwick v. Mills, 3 Q.L.J. 12) . . . . . . . . 191
SUICIDE—
Aiding or counselling (R. v. Draper, 1903, Q.W.N. 32) . . . . . . 492
TERRITORIAL^
Jiurisdiction (R. v. Gomez, 56 S.C.R. 189) . . . . . . . . 119
Waters {R. v. Jimmy, 4 S.C.R. 130 ; 7 Q.L.J. N.C. 106) . . . . 93
TRIAL—
Arraignment, insanity {R. v. KovalJcy, 6 Q.L.J. 219) . . . . . . 295
Double verdict (R. v. McGee, 6 Q.L.J. 151) . . . . . . . . 279
Order of addresses {R. v. Kennedy and Royston, 1 Q.L.J. 12) . . . . 123
Prisoner, seat on floor of Court (JS. v. WUson, 7 Q.L.J. N.C. 110) . . . . 336
Statement of defended prisoner read to jury (R. v. Ross, 6 Q.L.J. 261) . . 298
UNLAWFULLY—
Using cattle (MUlis v. Kiefer, 10 Q.L.J. 142) . . . . . . . . 376
Using (Cunningham v. McFarlane, 1 Q.L.J. 49) . . . . . . 129
Wounding, verdict for common assault {R. v. Jocumsen, 1901, Q.W.N. 32) . . 396
UNNATURAL OFFENCE—
R. V. Moody, 8 Q.L.J. 102 . . . . • . • • • ■ . . 344
VENUE—
Change of (iJ. v. Arrowsmith, 1903 Q.W.N. 31) . . . . . . . . 491
{R. v. Forrest, 1907 Q.W.N. 22) . . . . . . . . 600
WARRANT—
Sufficiency— <See Fugitive Offenders {R. v. McMurdo and Dames, 2 Q.L.J. 10) 150
WITHDRAWAL OF—
Plea (R. V. Roche, 3 Q.L.J. 139) . . • • • • • • . . 204
Point asked to be reserved (R. v. Cawley, 7 Q.L.J. 45) . . . . . . 314
WOUNDING UNLAWFULLY—
Verdict for assault (-K. v. Jocumson, 1901, Q.W.N. 32) . . . . . . 396
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